considers whether the claimant is presently employed or “engaged in substantial gainful activity.”
20 C.F.R. § 404.1520(b). If he is, the claimant is not disabled and the evaluation process is over; if
he is not, the ALJ next addresses whether the claimant has a severe impairment or combination of
impairments which “significantly limits . . . physical or mental ability to do basic work activities.”
20 C.F.R. § 404.1520(c). Third, the ALJ determines whether that severe impairment meets any of
the impairments listed in the regulations. 20 C.F.R. Pt. 404, Subpt. P, App.J. If it does, then the
impairment is acknowledged by the Commissioner to be conclusively disabling. See Brewer, 103
F.3d at 1391,

If the impairment does not so limit the claimant’s remaining capabilities, the fourth step is
that the ALJ reviews the claimant’s RFC and the physical and mental demands of his past work.
REC is a measure of what an individual can do despite the limitations imposed by his impairments.
See 20 CFR. §§ 404.1545(a), 416.945(a). See also Social Security Ruling 96-8p (1996). If the
claimant can perform his past relevant work, he will be found not disabled. See 20 C.F.R. §
404.1520(e).

For the fifth step, if the claimant shows that his impairment is so severe that he is unable to
engage in his past relevant work, then the burden of proof shifts to the Commissioner to establish
that the claimant -- in light of his age, education, job experience and functional capacity to work --
is capable of performing other work and that such work exists in the national economy. See 42
U.S.C. § 423(d)(2); 20 C.F.R. § 404.1520(f). See also Brewer, 103 F.3d at 1391.

ANALYSIS
Plaintiff seeks reversal or remand of the ALJ’s decision finding that she is not disabled.

Plaintiff alleges, inter alia, that (1) the ALJ’s determination that Plaintiffs condition would

19


or disconfirm such suspicions, an organic hypothesis concerning mood changes

secondary to closed head injury cannot be ruled out at the present time. Therefore,

adiagnosis of Mood Disorder Due to General Medical Condition(s) seems warranted

and subsumes both severe depression and anxiety related reactions.

Additionally, characterological concomitants are perhaps better and more

conservatively evaluated a Personality Disorder Not Otherwise Specified, which

implies that [Plaintiffs] adaptive resources may be insufficient at the present time

(and foreseeable future) to meet or address her daily adjustive demands.

Finally, this individual appears overwhelmed with both perceived and experienced

threats to her self-esteem. Her pre-morbid history seems to suggest functionality

across major life domains within normal limits.

Now, however, everything in her life is extremely difficult, frustrating and

exhausting. Sheer force of will and perseverance are no longer enough for [Plaintiff]

to readily prevail. From her point of view, she is virtually beaten. The fact that she

continues to seek medical and psychological services is a testimony to her desire not

to die... . (R. 779-80.)

On June 3, 1998, a state agency psychologist reviewed the record and opined that Plaintiff
could follow detailed instructions; she needed a routine and simple work setting where speed was
not essential; and she could not have frequent public interaction. (R. 744-46.) The state psychologist,
however, found that Plaintiff possessed adequate basic social skills and could adapt adequately to
daily changes. (R. 746.)

I. PLAINTIFF’S BACKGROUND/TESTIMONY

Plaintiff was born on February 10, 1951 and was forty-seven years old at the time of the onset
of her disability in February 1997. (R. 43, 126.) Plaintiffhas a high school education and completed
sixty college credits at Madonna College in Livonia, Michigan. (R. 44, 196.) She also completed
some management training at the Kellogg School of Management and is a graduate of the Dale

Carnegie Institute. (R. 44-45, 196.) Plaintiff worked at Michigan Bell Telephone from 1969-1990,

in a variety of capacities; including, service representative and supervisor. (R. 193-96.) She also

13


Medical Diagnosis & Treatment 1995 708-09 (1995). Its cause or causes are
unknown, there is no cure, and, of greatest importance to disability law, its symptoms
are entirely subjective. There are no laboratory tests for the presence or severity of
fibromyalgia. The principal symptoms are “pain all over,” fatigue, disturbed sleep,
stiffness, and -- the only symptom that discriminates between it and other diseases
of a rheumatic character -- multiple tender spots, more precisely 18 fixed locations
on the body (and the rule of thumb is that the patient must have at least 11 of them
to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient
to flinch.

All these symptoms are easy to fake, although few applicants for disability benefits
may yet be aware of the specific locations that if palpated will cause the patient who
really has fibromyalgia to flinch. There is no serious doubt that Sarchet is afflicted
with the disease but it is difficult to determine the severity of her condition because
of the unavailability of objective clinical tests. Some people may have such a severe
case of fibromyalgia as to be totally disabled from working, Michael Doherty &
Adrian Jones, “Fibromyalgia Syndrome (ABC of Rheumatology),” 310 British
Med.J. 386 (1995); Preston v. Secretary of Health & Human Services, 845 F.2d 815,
818 (6" Cir. 1988)(per curiam), but most do not and the question is whether Sarchet
is one of the minority. (emphasis added.)

The Court finds Defendant’s assertion that the ALJ did not give Dr. Dachman’s opinion

regarding Plaintiff's need to alternate between sitting and standing at thirty minute intervals
controlling weight because it was not supported by clinical and laboratory findings unavailing. The
ALJ, in his decision, stated that “the objective findings in this case fail to provide strong support for
the claimant’s allegations of disabling symptoms and limitations.” (R. 23.) The ALJ then cites the
fairly normal clinical and medical test results obtained by Dr. Dachman." (R. 23-26.) A cause of
Plaintiffs disabling condition, however, is fibromyalgia, and, as discussed in Sarchet, supra, inmost
cases, there will be no objective medical evidence indicating the presence or severity of
fibromyalgia. 78 F.3d at 306-07. The symptoms are subjective and laboratory tests are of little value.
Id. That being said, however, the medical record shows that Plaintiff has eleven of the eighteen

tender spots needed to confirm a diagnosis of fibromyalgia. (R. 648-740.) In addition, the extensive

“The ALJ also references Dr. Birnbaum’s treatment notes from November 1994 through
October 1997 indicating treatment for fibrositis and fibromyalgia. (R. 23.)

23


possible cervical radiculopathy was noted at that time. (R. 728.) On November 3, 1994, Dr.
Dachman wrote a letter to Plaintiff stating that she appeared to have inflammation of the tendons of
both of her thumbs. (R. 722.) Dr. Dachman prescribed Prednisone and explained the side-effects of
the medication to Plaintiff. (R. 722.)

On November 19, 1994, Dr. Dachman reported that Plaintiff had “[a] considerable amount
of periscapular trigger points and subscapular trigger points for which injections were given to six
locales.” (R. 720.) In his report, Dr. Dachman noted, “Diagnosis of fibrositis substantiated”
subsequent to EMG testing of Plaintiff. (R. 720.) Moreover, on December 6, 1994, Dr. Dachman
noted, “This date [Plaintiff] has severe periscapular trigger points.” (R. 720.) Furthermore, on
December 9, 1994, Dr. Dachman explained to Plaintiff in a letter that she was being treated for
fibrositis. (R. 718.) In Dr. Dachman’s letter, he stated:

Per our conversation, I have given [Plaintiff] six trigger points for fibrositis.

Fibrositis is a diffuse inflammation of all soft tissues in the body. It specifically

relates to a fall in endorphin levels, our normal shock absorber. Endorphin is a

compound which is thought to be 30 times more powerful than morphine and is

secreted only during deep sleep phases. If you do not achieve deep sleep, these

endorphins may be depleted and a secondary and diffuse pain syndrome will result.

‘This lack of endorphin, this lack of our normal shock absorber then results in the pain
and inflammation that is experienced, the so called fibrositis state.

+e (R. 718.)
Dr. Dachman diagnosed Plaintiff with fibromyalgia and began treating her for this condition in 1995.
(R. 667.)

On January 13, 1995, Dr. Dachman recommended that Plaintiff continue her treatment with


> WH... THE COURT’S FINDING

Section 405(g) confers judicial authority to affirm, modify or reverse the Commissioner’s
decision “with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). A court need
not remand a cause “when no useful purpose would be served by further administrative proceedings,
or when the record has been fully developed and there is not sufficient evidence to support the ALJ’s
conclusion.” Holden v, Shalala, 846 F.Supp. 662, 669-70 (N.D.II1.1994)(citations omitted.)
Because, herein, the step five outcome is clear, the Court finds that no useful purpose would be
served by a remand which would lead to the same ultimate conclusion. Moreover:

When the ALJ fails to point to clear and convincing reasons for rejecting the

conclusion of the treating physician, or provide specific, legitimate reasons based on

evidence for disregarding that conclusion, and when the administrative record is fully
developed, benefits should be awarded. Grindle, (quoting Boyes v. Sullivan, 901 F.2d

717, 722-23 (9" Cir. 1989) (citations omitted)

See also Willis v, Callahan, 979 F.Supp. 1299, 1306 (D.Or.1997) (reversed and remanded for an
award of benefits where the ALJ improperly discredited the opinions of the plaintiff's two treating
physicians that she was disabled from fibromyalgia and accepted the opinions of two nonexamining
state reviewing physicians); Opgenorth v. Shalala, 897 F.Supp.1199, 1202-04 (E.D.Wis.
1995)(reversed and remanded for an award of benefits where the ALJ discredited the plaintiff's
testimony as well as the opinions of her four treating physicians regarding chronic fatigue syndrome
and fibromyalgia; and, instead, relied on the opinion of a nonexamining state reviewing physician
in finding that the plaintiff was not disabled); Glenn v. Apfel, 102 F.Supp.2d 1252,1260 (D. Kan.
2000) (reversed and remanded for an award of benefits where the ALJ discredited the opinions of
the plaintiff's treating physicians and accepted the opinions of the state consultative examiners in.

finding that the plaintiff was not disabled from fibromyalgia).

Because the record is fully developed, it is appropriate for the Court to reverse the ALJ’s

34


be compensated by allowing her to change positions every hour, for a period of five to ten minutes
on each occasion, is without support in the record, ignores repeated assessments that Plaintiff needed
to change positions every thirty minutes and thus is not supported by substantial evidence; (2) the
ALJ ignored Plaintiff’s non-exertional impairments which includes her ability to concentrate; and
(3) the ALJ failed to follow the mandates of Social Security Ruling (“SSR”) 96-7p when assessing
Plaintiff’s credibility. Pl.’s Mem. at 14-15, 26.

L THERE IS NO BASIS IN THE RECORD FOR THE ALJ’S FINDING THAT

PLAINTIFF’S CONDITION WOULD BE COMPENSATED BY ALLOWING HER

TO ALTERNATE BETWEEN SITTING AND STANDING POSITIONS AT

INTERVALS OF ONE HOUR.

The Court initially notes that the ALJ’s determination that Plaintiff’s condition would be
compensated by allowing her to change positions every hour is wholly without support in the record.
Specifically, there is absolutely no basis in the 854 page record for the ALJ’s determination that
Plaintiff must be allowed to alternate between sitting and standing positions at intervals of one hour
for a period of five to ten minutes on each such occasion. (R. 30.) For instance, there are no clinical
or laboratory findings or medical reports from Dr. Dachman, Plaintiff’s treating physician indicating
that she must alternate between sitting and standing positions at one hour intervals. In fact, Dr.
Dachman explicitly states that: “Osteoarthritis and fibromyalgia made it impossible for [Plaintiff]
to sit or stand for periods of thirty minutes without excruciating pain.” (R. 667.) Moreover, there
are no state agency physicians who have specified a one hour sit/stand limitation. In addition, the
Court notes, respectfully, that Defendant, in its Memorandum, does not discuss or explain the ALJ’s
basis for finding that Plaintiff's condition would be compensated if she alternated between sitting

and standing positions at one hour intervals. See generally, Def.’s Mem. Furthermore, in the ALJ’s

20


claimant); Allen v. Weinberger, 552 F.2d 781, 786 (7" Cir. 1977) (the opinions of treating physicians
are entitled to greater weight than those of a physician who never examined plaintiff but merely
reviewed plaintiff's medical file). As the court held in Allen with regard to the conclusions of
physicians who merely reviewed the plaintiff's medical file and performed no examinations: “. . .
the weight to be attached to the reports must be considered in light of the fact that neither physician
examined the plaintiff. . . Their reports, without personal examination of the claimant, deserve little
weight in the overall evaluation of liability. The (medical) advisers’ assessment of what other
doctors find is hardly a basis for competent evaluation.” Allen, 552 F.2d at 786. (citation omitted.)
See also Whitney v. Schweiker, 695 F.2d 784,789 (7" Cir. 1982)(holding that the opinions of treating
physicians should generally be given greater weight than the opinions of non-treating physicians
where the state reviewing physician reviewed the claimant’s medical record, but did not examine the
claimant); Grindle, 774 F.Supp. at 1507-10 (same). Given the fact that the state agency physicians
never personally examined Plaintiff; the Court finds that Dr. Dachman’s opinion should have been
accorded more weight than those of the state agency physicians.

The Court next notes that the state agency physicians made their medical assessments on pre-
printed questionnaires, by placing checkmarks in boxes next to alternative medical statements
already printed on the form. (R. 635-42, 748-55.) At the end of each form, each state agency
physician wrote a brief note in a few sparsely worded sentences indicating his recommendation. (R.
641-42, R. 754-55.) See e.g., Garrison v. Heckler, 765 F.2d 710, 713, 715 (7" Cir. 1985)(“a bare
statement of a consulting specialist is not substantial evidence when the specialist does not examine
the patient” and the “ability to observe the claimant over an extended period is essential to an

accurate understanding.”)(citations omitted)'*; cf Richardson, 402 U.S. at 402; 91 S.Ct. 1420, 28

'’Garrison holds that a consulting physician’s report may provide substantial evidence to
(continued...)

26


” perspective to the medical evidence that cannot be obtained from the objective findings alone or
from reports of individual examinations .. .” 20 C.F.R. § 404.1527(d)(2). If, however, a medical
opinion is not entitled to controlling weight, it is accorded deference and must be weighed using the
factors set out in the regulations.” The ALJ is required to give “good reasons in [the] notice of
determination or decision for the weight [given to a] treating source’s opinion.” Jd.; See also SSR
96-2p.

A. Objective Medical Evidence

The Court initially notes that the parties do not dispute that Plaintiff suffers from
fibromyalgia.” (R. 30.) The Seventh Circuit described the disease in Sarchet v. Chater, 78 F.3d
305, 306-07 (7" Cir. 1996), as follows:

Marlin Sarchet was denied social security disability benefits, challenged the denial

in the district court, lost, appeals. She is 42 years old, with a graduate equivalency

degree, but she has not worked since 1978. She claims that in 1990 she became

totally disabled as a consequence of fibromyalgia, also known as fibrositis--a

common, but elusive and mysterious disease, much like chronic fatigue syndrome,

with which it shares a number of features. See Frederick Wolfe et al., “The American

College of Rheumatology 1990 Criteria for the Classification of Fibromyalgia:

Report of the Multicenter Committee,” 33 Arthritis & Rheumatism 160 (1990);
Lawrence M. Tierney, Jr., Stephen J. McPhee & Maxine A. Papadakis, Current

"The following factors are used in determining the weight given to a treating physician’s
opinion when it is not given controlling weight: (1) length of the treatment relationship and the
frequency of examination; (2) nature and extent of the treatment relationship; (3) supportability
(the more a medical source presents relevant evidence to support an opinion, particularly medical
signs and laboratory findings, the more weight is given to that opinion); (4) consistency (the
more consistent an opinion is with the record as a whole, the more weight it is given); (5)
specialization (more weight is given to the opinion of a specialist about medical issues related to
that source’s specialty); and (6) other factors (those factors which tend to support or contradict an
opinion). 20 C.F.R. § 404.1527(d)(2)G)Gi); 404.1527(d)(3)-(6).

"In fact, Plaintiff has one of the more severe cases of fibromyalgia and associated
Raynaud’s syndrome. (R. 667.) Plaintiff also suffers from severe arthritis in her back and hands
and tendentious, sacroiliitis, ischial bursitis, pelvic malalignment, right shoulder impingement,
right lateral epicondylitis, mild lumbar radiculopathy, carpal tunnel syndrome, back arthritis,
memory difficulties, personality disorder, and depression. (R. 30.)

22


decision outright. The Court finds that substantial evidence does not support the ALJ’s decision that
Plaintiff could engage in substantial gainful activity. A review of the record supports the conclusion
that Plaintiff was disabled. Accordingly, the Court finds that Plaintiff is disabled under the terms of
the Act.
CONCLUSION”

Accordingly, the Court grants Plaintiff's Motion for Summary Judgment or Remand and
denies Defendant’s Motion for Summary Judgment. The decision below is reversed and the cause
is remanded to the Commissioner with instructions for an immediate award of benefits consistent

with this Memorandum Opinion and Order.

ENTER:

Nant horn

IAN H. LEVIN
US. Magistrate Judge

Dated: July 9, 2002

In view of the Court’s ruling herein, it is deemed unnecessary to consider Plaintiff's and
Defendant’s other arguments raised herein.

35


she must be allowed to alternate between sitting and standing positions at intervals of one hour for
a period of five to ten minutes on each occasion; she could not lift and/or carry more than ten pounds
frequently and twenty pounds occasionally; she could not lift her right arm overhead more than
occasionally; she could not climb ladders, ropes or scaffolds; she could not climb ramps or stairs,
balance, stoop, kneel, crouch or crawl more than occasionally; she could not work with or near
exposed, unprotected dangerous machinery or heights; she could not maintain such extended
attention or concentration as is required to carry out detailed and/or complex work instructions
and/or tasks; and she could not interact with the general public more than occasionally. (R. 30-31.)
Thus, the ALJ concluded that Plaintiff has the RFC to perform a limited range of sedentary work,
subject to the above specified limitations; however, Plaintiff is unable to perform her past relevant
work. (R. 31.)

The ALJ determined that in view of Plaintiffs vocational characteristics and RFC, the
Medical-Vocational Guidelines were not applicable. 20 C.F.R. Pt. 404, Subpt. P, App. 2. (R. 31.)
However, using Rule 201.21 or 202.21 as a framework, as supplemented by the VE’s testimony, the
ALJ concluded that Plaintiff could perform a significant number of jobs in the national economy.
(R. 31) Plaintiff, therefore, is capable of performing packager and inspection jobs. (R. 31.)

The ALJ further found that Plaintiff's allegations of disabling symptoms and limitations were
not fully credible. (R. 30.)

Accordingly, the ALJ found that Plaintiff was not disabled under the terms of the Act. (R.
32.)

LEGAL STANDARDS

L STANDARD OF REVIEW

17


range of motion, decrease her pain and increase her strength, and she was going to return to work
on a part-time basis. (R. 668.) On May 15, 1997, Dr. Dachman sent a letter to the Employee Benefit

Committee, in which he stated, in pertinent part: -

[Plaintiff] has been a patient of mine since 1994 .. . . She has continuously visited
the Schaumburg Pain Center on an average of twice a week since 1994 for
occupational or physical therapy and trigger point injections.

Over a period of a year we conducted extensive testing for widespread chronic pain,
parathesia [sic], tenderness, tingling and numbness in joints and muscles, fatigue,
irritability to concentrate and memory impairment. The tests include MRI, CT, EMG,
bone scan, x-rays and blood work. The results of those tests are enclosed. I
diagnosed [Plaintiff] with fibromyalgia and began treating her for this condition in
1995. My diagnosis based on numerous physical examination[s] determining the
presence of multiple tender points in characteristic locations, [Plaintiff's] physical
symptoms of numbness to the point of being unable to walk, and many tests results
have ruled out other disorders.

.... Osteoarthritis and fibromyalgia make it impossible for [Plaintiff] to sit or stand
for periods of thirty minutes without excruciating pain... .

[Plaintiff] has one of the more severe cases of fibromyalgia and associated Raynaud’s
syndrome, along with severe arthritis in her back and hands and tendentious. In
addition to the custom back brace and other procedures I am using to treat [Plaintiff]
she is also undergoing physical therapy twice a week, occupational therapy for her
arms and wrists, and she is following a regime of diet, exercise and medications
which include Prednisone trigger point injections, Medrol, Klonopin, Zoloft,
Ambien, Oruval [sic], Relafen and Cytotec. The side effects of the medications
required to relieve her excruciating pain contribute to her fatigue and inability to
concentrate. [Plaintiff] must remain under treatment and on medications to tolerate
the pain indefinitely since a cure has not been found for fibromyalgia.

-. ++ (R. 667.)
Plaintiff continued to receive treatment in June, July and August 1997, which included
multiple injections and continued medications. (R.663-66.) It was noted that Plaintiff's chronic

pelvic malalignment with a sense of weakness proximally made it difficult for her to complete her


” pain.”) Based on the record, Plaintiff has a limited number of daily activities that she is capable of
performing. Plaintiff's ability to perform these activities is not indicative of the fact that her pain is
not disabling and consequently, inconsistent with Dr. Dachman’s opinion. The fact that Plaintiff can
perform some occasional daily activities does not, in itself, mean that she is capable of working or
engaging in substantial gainful activity.” See e.g, 20 C.F.R. § 404.1572(c). Rather, Dr. Dachman
specifically opined that Plaintiff cannot sit or stand for more than thirty minute intervals, and when
considering his opinion, in conjunction with the VE’s testimony, Plaintiff is unequivocally disabled.

The Court concludes that there is no evidence in the record to indicate that Plaintiff is not
credible. For example, the medical records reflect that Plaintiff consistently sought medical
treatment for her impairments and pain over an extended period of time. Based on the record,
Plaintiff diligently pursued physical therapy and adhered to her treating physician’s
recommendations. Moreover, Plaintiff, in spite of her impairments, wanted to return to work part-
time”!, something Dr. Dachman suggest was possible at one time. (R. 669.) The Court, therefore,
finds that there is no evidence in the 854 page record of either malingering or exaggeration on the
part of Plaintiff. Contrary to what the ALJ recognized, Plaintiff worked very hard to get better, but,

unfortunately, she could not, and consequently, she is disabled.

2°%Tn addition, Plaintiff's interest in pursuing classes in Interior Design by correspondence,
which is even less than authorized “school attendance,” and the fact that she was planning to
move to Florida are not inconsistent with Dr. Dachman’s medical opinion. Rather, these
activities are analogous to daily activities, in that, Plaintiff’s ability to perform them, does not
mean that she is capable of working or engaging in substantial gainful activity.

1A claimant is disabled if he cannot perform full-time work. SSR 96-8p (“[o]rdinarily,
RFC is an assessment of an individual’s ability to do sustained work-related physical and mental
activities in a work setting on a regular and continuing basis. A ‘regular and continuing basis”
means 8 hours a day, for 5 days a week, or an equivalent work schedule.” In addition, once a
claimant has stopped working, he is considered disabled if he is only able to perform part-time
work. Ratto v. Sec’y of Health & Human Servs., 839 F.Supp1415, 1430-31 (D.Or. 1993);
Rodriguez v. Bowen, 876 F.2d 759, 762-63 (9" Cir. 1989) (claimant who could only work four
hours a day was presumptively disabled).

32


" intervals-unmeritorious. Def.’s Mem. at 12. Defendant references four pages in the administrative
record; specifically, R. 658 (October 30, 1997 treatment record), R. 666 (June 3, 1997 treatment
record), R. 668 (May 6, 1997 treatment record), and R. 678 (September 6, 1997 letter written by Dr.
Dachman), as support for its proposition that Plaintiff's condition improved with treatment during
the relevant period; consequently, her condition was effectively controlled by treatment. Id. ; See e.g.
Warford v. Bowen, 875 F.2d 671, 673 (8" Cir. 1989)(“A medical condition that can be controlled
by treatment is not disabling.”)(citations omitted.) The Court notes, however, that Dr. Dachman’s
clinical findings and medical assessment do not, in fact, support a conclusion that Plaintiff's
condition improved with treatment. Rather, when viewing the pages referenced by Defendant, in
light of the medical record as a whole, the referenced pages merely reflect medical diagnoses and
a treatment history that indicate that Plaintiff’s fibromyalgia has had remissions and exacerbations.
Moreover, the Court notes that in a letter dated December 23, 1997, a page from the record that was
not referenced by Defendant, Dr. Dachman opined that Plaintiff was not able to sit or stand for more
than thirty minutes at a time and he “wholeheartedly recommend[ed] disability.” (R. 656.) It bears
noting that Dr. Dachman wrote this letter afer the period of time which Defendant alleges that
Plaintiffs condition had significantly improved. (See R. 658, 666, 668, 678.)

The Court next finds Defendant’s assertion that Dr. Dachman’s opinion was, in large part,
based on Plaintiff's subjective complaints without merit. Def.’s Mem. at 12-13. For example,
Defendant contends that, in March 1997, Plaintiff told Dr. Dachman that her back pain made it
impossible for her to sit or stand for more than thirty minutes at a time, but that she was fine if she
could switch positions frequently. Jd. (R. 670.) The Court first notes that it is not clear from the
record whether Dr. Dachman’s annotation reflecting the fact that Plaintiff could not sit or stand for

more than thirty minute intervals was based on a statement Plaintiff made to Dr. Dachman or

29


continued to include Zoloft, Daypro®, and Klonopin. (R. 700.) Point tenderness was noted over the
SI joint and facet locales; two SI joint injections and two facet point injections were administered;
and pelvic malalignment was reported. (R. 700.) As of September 20, 1995, Plaintiff's Daypro
medication was discontinued due to stomach irritation, but Oruvail,’ Zoloft, and Klonopin were
continued. (R. 697.) Work hardening and soft tissue mobilization were also continued and bilateral
CMC injections were administered. (R. 697.)

Dr. Dachman continued to treat Plaintiff for her complaints of pain and spasms in her back
in October, November, and December of 1995. (R. 695.) On November 2, 1995, Dr. Dachman
noted that Plaintiff was to continue taking her medications; however, he also prescribed a Medrol
Dosepak and SJ] joint injections. (R. 694.) Dr. Dachman reported,

Currently she is doing a lot better. She is ready to return to work if she is able to sit

and stand ad lib, but continues to have some lower back distress with exam revealing

facet and SI joint pathology as well as left supratrochanteric and ischial bursal

inflammation, (R. 694.)

Moreover, in a letter dated December 13, 1995, Dr. Dachman stated that, “This date she is clearly
having a flare up of her fibromyalgia . . .” (R. 691.)

In a letter dated January 19, 1996, Dr. Dachman stated that, “At this time she is satisfactory

but nevertheless, [she] still has some minimal SI joint and facet irritation for which Marcaine® has

been utilized.” (R. 688.) Furthermore, Dr, Dachman reported on March 1, 1996 that “[Plaintiff] is

surely better than she was before. She is extremely happy and has much less pain. She is now

‘Daypro is prescribed for the management of the signs and symptoms of osteoarthritis and
rheumatoid arthritis. PDR (51* ed. 1997) at 2579.

7Oruvail is prescribed for the management of signs and symptoms of osteoarthritis and
rheumatoid arthritis. PDR at 3549.

®Marcaine is not listed in the 56" ed. of the PDR.

6


Zoloft? and Ambien.* (R. 716.) Dr. Dachman saw Plaintiff in April 1995 and diagnosed severe
pelvic malalignment and fibrositis. (R. 709-10.) Multiple trigger points were also noted along with
tenderness over both occipital locales. (R. 710.) Dr. Dachman recommended bilateral greater
occipital nerve blocks, four parascapular trigger points, physical therapy, soft tissue immobilization,
and electrical stimulation to the neck and parascapular locales. (R. 710.) Plaintiff's treatment with
Zoloft and Ambien was continued. (R. 712.)

On May 2, 1995, Dr. Dachman reported that Plaintiff had developed acute sciatica and stated
in his report that, “This is manifest as additional complications, with sacroiliitis and left hip bursitis.”
(R. 707.) Plaintiff received Depo-Medrol injections, her treatment with Zoloft, Ambien and
Klonopin’ was continued, and physical therapy was initiated. (R. 707.) In a May 31, 1995 letter,
Dr. Dachman stated that he continued to diagnosis Plaintiff with the same conditions; namely,
fibrositis, sacroiliitis, and possible sciatica. (R.703.) Dr. Dachman stated that “She really [has] not
improved with her current therapeutic regimes.” (R. 703.)

On July 18, 1995, Dr. Dachman indicated that Plaintiff “still has significant back arthropathy
which is not responsive to her current therapeutic modalities.” (R. 701.) Dr. Dachman further noted
that “Currently, she is not getting better and really is quite status-quo; additional medications will
be contemplated such as Gabapentin or Clonidine, [depending] on her response to the therapy and

epidurals thereof.” (R. 701.) On August 24, 1995, Dr. Dachman noted that Plaintiffs medications

*Zoloft is prescribed for the treatment of major depressive disorder. PDR at 2752.
‘Ambien is prescribed for the short-term treatment of insomnia. PDR at 3192.

5Klonopin is prescribed for patients with absence seizures (petit mal) who have failed to
respond to succinimides. PDR at 2983.


Judicial review of the Commissioner’s final decision is limited. The Act at 42 U.S.C. §
405(g) establishes that the Commissioner’s findings as to any fact are conclusive if they are
supported by substantial evidence. See also Brewer v. Chater, 103 F.3d 1384, 1390 (7" Cir. 1997).
“Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Richardson v. Pearles, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d
842 (1971); Brewer, 103 F.3d at 1390. The court may not reevaluate the facts, reweigh the evidence,
or substitute its own judgment for that of the Commissioner. See Brewer, 103 F.3d at 1390.
Conclusions of law, however, are not entitled to deference. Thus, if the Commissioner commits an
error of law, reversal is required without regard to the volume of evidence in support of the factual
findings. See Binion v, Chater, 108 F.3d 780, 782 (7" Cir. 1997).
I. STATUTORY AND REGULATORY FRAMEWORK

To receive disability benefits, SSI and DIB claimants must be “disabled” as defined by the
Act. See 42 U.S.C.§ 423(a)(1)(D); 42 U.S.C. § 1382(a); Pope v. Shalala, 998 F.2d 473, 477 (7" Cir.
1993). An individual is “disabled” if he is unable “to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a continuous period of not less than 12
months.” See 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a). See also Jones v. Shalala, 10
F.3d 522, 523-24 (7" Cir. 1993). To satisfy this definition, an individual must have a severe
impairment that renders him unable to do his previous work or any other substantial gainful activity
that exists in the national economy. See 20 C.F.R. § 404.1505(a).

The Social Security regulations delineate a five-step process for determining whether a

claimant is disabled within the meaning of the Act. See 20 C.F.R. § 404.1520. The ALJ first

18


hera Medrol Dosepak for neck pain. (R. 673.) After an emergency room visit on February 19, 1997,
Dr. Dachman reported that:
[Plaintiff] came in for severe pain. Complete examination [was] performed and
reveals multiple periscapular trigger points, SI joint tenderness, tenderness over the
ischial and supratrochanteric locales. 1 have thus given her four trigger point
injections, two SI joint injections, two ischial bursal injections and two
supratrochanteric injections. (R. 673.)
Dr. Dachman saw Plaintiff, again, on March 25, 1997. (R. 670.) Dr. Dachman noted that
Plaintiff should continue taking Zoloft, Klonopin, Relafen and Ambien. (R. 670.) Dr. Dachman
reported that:

.... Currently [Plaintiff] still has chronic but intermittent back pain making it
impossible for her to sit or stand for more than 30 minutes at a time.

If she is able to switch her positions on a frequent basis she is fine.

She also has trouble driving on a prolonged basis because of lower back pain which
occurs after driving more than 15 or 20 minutes.

She also has complaints of feet going numb during these driving episodes, making
driving impossible... . (R. 670.)

In a letter dated May 6, 1997, Dr. Dachman stated that Plaintiff's condition made it
impossible for her to sit or stand for more than thirty minutes at a time. (R. 669.) Dr. Dachman,
however, indicated that Plaintiff could do part-time work where she could shift her positions
frequently. (R. 669.) Dr. Dachman also reported, “This date she is not doing too well. She is clearly
having a flare [up] of her ongoing symptomatology with periscapular trigger point pathology, greater
occipital neuralgia and SI joint and ischial bursal inflammation. Complete review of systems and
physical confirming these problems.” (R. 668.) Plaintiff received four periscapular and
scapulohumeral trigger point injections, two SI joint injections, and two ischial bursal injections, all

with Marcaine. (R. 668.) Dr. Dachman also noted that therapy had helped Plaintiff increase her


854 page record is replete with medical and progress notes tracking the debilitating course of
Plaintiff's disease, which Dr. Dachman treated for several years. 'S (R, 667.) Italso bears noting that
it was not fibromyalgia alone that caused Plaintiff's condition. As Dr. Dachman stated:
“Qsteoarthritis and fibromyalgia make it impossible for [Plaintiff] to sit or stand for periods of thirty
minutes without excruciating pain” and “[Plaintiff] has one of the more severe cases of fibromyalgia
... along with severe arthritis in her back and hands and tendentious.” (R. 667.)

In view of the foregoing, a sufficient basis did not exist for the ALJ’s rejection of Dr.
Dachman’s opinion or for according his treating medical opinion lesser weight.'®

B. Medical Evidence

Defendant next contends that other substantial medical evidence in the record supports
Plaintiff's need to alternate between sitting and standing, but not as frequently as Dr. Dachman
suggested. Def.’s Mem. at 11. Specifically, Defendant contends that two state agency non-examining
physicians explicitly disagreed with Dr. Dachman’s thirty minute sit/stand limitation and concluded
that Plaintiff could stand and/or walk for a combined total of two hours and she could sit for six

hours in an eight-hour workday, with no need to alternate between sitting and standing other than

For example, the medical record reflects the fact that Plaintiff has received extensive
medical treatment for her condition: (Medical records from December 30, 1993 to January 14,
1994 from Dr. Uhier) (R. 207-09); (Sitting problems . . . tightness in 1995)(R. 377);
(Headaches)(R. 437); (Knee problems) (R.3 80); (Recommendation that Plaintiff sit or stand on
an ad lib basis)(R.694); (Problems with back and walking for long periods)(R. 408); (Sitting for
long periods aggravates pain)(R. 689, 695); (Tingling sensation up and down both legs)(R. 409);
Physical therapy records)(R. 210-414); (Referral to send Plaintiff back to primary care physician
for orthopedic consultation)(R. 415- 16); (Fibrositis suspected and confirmed)(R. 712, 720);
(Referrals for fibrositis)(R. 544, 566, 573, 581, 588); (Medical records from June 18, 1994 to
December 22, 1996 from Caremark, Inc.)(R. 417-25); (Treating physicians’ prognosis/diagnosis)
(R. 690-721, 793, 828); (Recent medical treatment, medications and work background)(R. 829-
31); (Medical records in regard to Plaintiff's mental impairments)(R. 832-45); (Rx lists)(R. 423);
(EMG?’s performed on Plaintiff(R. 458, 467, 472, 475).

The Court further finds that it reaches this same result by applying the appropriate
regulations’ six factor test set forth at footnote 12, supra.

24


2.
‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Jan H. Levin Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C 7477 DATE 7/9/2002
CASE Criner vs. Barnhart
TITLE
{In the following box (a) indicate the party filing the motion, ¢.., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
a) a Filed motion of [ use listing in “Motion” box above.]
(2) Qa Brief in support of motion due
(3) i Answer brief to motion due. . Reply to answer brief due.
(4) Oo Ruling/Hearing on set for at
(5) a Status hearing{held/continued to] [set for/re-set for] on set for at
(6) a Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(7) im Trial[set for/re-set for] on at
(8) Qo [Bench/Sury trial] [Hearing] held/continued to at
()) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) (CGeneral Rule21 COFRCP41(a)\(1) CI FRCP41(a)(2).
do) [Other docket entry]  Plaintiff’s motion for summary judgment or remand is granted. Defendant’s
motion for summary judgment is denied. The Cause is reversed and remanded to the Commissioner of
Social Security with instructions for an immediate award of benefits consistent with the Memorandum
Opinion and Order. Judgment is entered pursuant to Rule 58 F.R.C.P. Enter Memorandum Opinion and
Order. This cause is hereby terminated.
dl) a [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. umber of notices
Notices mailed by judge's staff.
Notified counsel by telephone. JUL, 1,0 2002
wv | Docketing to mail notices. P ; } L,
Mail AO 450 form. LY¥noa 49 Sig docksting deputy initials
Copy to judge/magistrate judge. LN Id 's'n
ak 4 We . date mailed nosice
courtroom ~
om input 6~ in 20
initials q =
OF TTT, ——
UC fegine recived in nig sp



than 30 minutes at a time.

Recent EMG and examination by Dr. Lawrence Wilkin, M.D., Ph.D., Neurologist,

confirmed a multiple and mild bilateral lumbar radiculopathy complicating the

issues, her degree of pain not as yet responsive to vigorous therapy, soft tissue

mobilization, electrical stimulation and appropriate exercises and medicine thereof.

Her prognosis is poor in that I do not see her increasing her range of motion,

decreasing her pain or increasing her strength, and wholeheartedly recommend

disability.

-..({R. 656.)
State Agency Physicians

On January 28, 1998, a state agency physician, reviewed Plaintiff's medical record. (R. 635-
42.) The state agency physician opined that Plaintiff could not lift and/or carry more than ten pounds
frequently or twenty pounds occasionally; she could not stand and/or walk for more than a combined
total of two hours in an eight-hour workday; she could not sit for more than six hours in an eight-
hour workday (with normal breaks); she could not climb ladders, ropes or scaffolds; and she could
not climb ramps or stairs, balance, stoop, kneel, crouch and craw] more than occasionally. (R. 30-31,
635-42). Furthermore, on June 3, 1998, another state agency physician, reviewed the medical record
and opined the exact same limitations as that of the prior state agency physician who had reviewed
Plaintiff's medical record on January 28, 1998. (R. 30-31, R. 748-55.)

B. Plaintiff’s Mental Condition

Patricia DeWitt, Ph.D., began treating Plaintiff on February 8, 1997 and continued to treat
her through January 1998. (R. 632.) Dr. DeWitt noted that Plaintiff had the following symptoms:

depressed mood, decreased energy, grief, worthlessness, guilt, anxiousness, irritability, disruption

of thought process/content, somatic complaints, and concomitant medical condition. (R. 631, 633.)

11


normal daily work activities. (R. 666.) Plaintiff's isolated pelvic malalignment and decrease in spinal
flexion confirmed her underlying facet disease and a suspected regional myofascial syndrome. (R.

666.) Moreover, on September 6, 1997, Dr. Dachman reported:

At this time [Plaintiff] is doing better but still has some proximal muscle weakness
of the lower extremities as well as tenderness over the SI joints and ischial bursal
locales.

She is now specifically complaining of pain radiant posterior laterally to the left heel.

[Plaintiff] is also having incoordination with hand grasp and weakness in hand grasp
thereof, associated with numbness in her fingers, specifically in the carpal
tunnel/median nerve distribution. . . . (R. 678.)

As of October 15, 1997, Dr. Dachman reported that Plaintiff’ s EMG confirmed multiple and
bilateral lumbar radiculopathies. (R. 662.) Subsequent to Plaintiff's examination on October 30,
1997, Dr. Dachman reported that Plaintiff had a complication of marked right shoulder decrement
in motion, mild right lateral epicondylitis, and minimal decrease in spinal flexion LS spine with
trigger points present. (R. 662.) In a December 23, 1997 letter, Dr. Dachman stated:

[Plaintiff] has long term back arthritis and fibromyalgia.

The back arthritis has been complicated by the diffuse aches and pains which are
secondary to the fibromyalgia.

The back arthritis has further been complicated by electromyographic evidence of a
multiple lumbosacral radiculopathy complicating the issues.

As a result of the chronic pain she has both in her shoulders, parascapular locale,
neck and back, she has been unable to concentrate, has a significant memory
dysfunction, has sleep dysfunction, chronic myalgias, arthralgias and fatigue.

There is no way she can function in any work related environment because of her
continued discomfort and memory dysfunction, not being able to sit or stand for more

10


606 F.2d 403, 409 (3% Cir, 1979)(a claimant with a good work record is entitled to substantial
credibility when claiming an inability to work as a result of disability); Duncan v. Harris, 518
F.Supp. 751, 758 (E.D.Ark. 1980) (the court emphasized the importance of a consistent work history
in assessing a claimant’s credibility)(citation omitted.) Thus, contrary to Defendant’s assertion,
Plaintiff is clearly entitled to substantial credibility in that she has continuously worked throughout
her lifetime and sought employment despite her disabling condition. The Court, therefore, cannot
find that Plaintiff’ s desire to continue working as being inconsistent with Dr. Dachman’s finding of
disability and the fact that she could not sit or stand for more than thirty minute intervals.
Defendant next asserts that Plaintiff’s reported daily activities, which include doing some
household chores (e.g., dusting and making the bed), small tasks, and home exercises as well as
shopping, and visiting her family two to three times a week are inconsistent with Dr. Dachman’s
medical opinion that Plaintiff cannot sit or stand for more than thirty minute intervals. (R. 64, 75,
202, 206.) Moreover, Defendant asserts that Plaintiff desire to take classes in Interior Design by
correspondence and move to Florida when her home was sold are also inconsistent with Dr.
Dachman’s medical opinion. (R. 28.) The Court initially notes that because Plaintiff is able to
perform some daily activities on an occasional basis does not mean that the severity of her pain is
less credible. See e.g. 20 C.F.R. § 404.1572(c)(“Generally, we do not consider activities like taking
care of yourself, household tasks, hobbies, therapy, school attendance, club activities, or social
programs to be substantial gainful activity”); Clifford, 227 F.3d at 872 (noting “minimal daily
activities... do not establish that a person is capable of engaging in substantial physical activity”);
Zurawski v. Apfel, 245 F.3d 881, 887 (7" Cir. 2001)(finding that the plaintiff's activities “[were]
fairly restricted (e.g., washing dishes, helping his children prepare for school, doing laundry, and

preparing dinner) and not of a sort that necessarily undermines or contradicts a claim of disabling

31


~ whether it was based on Dr. Dachman’s extensive observation and/or treatment of Plaintiff. Next,
Defendant cites Butera v. Apfel, 173 F.3d 1049, 1056-57 (7" Cir. 1999) for proposition that an ALJ
may properly discount a treating physician’s opinion when it is based on a claimant’s subjective
complaints. However, Butera is not apposite here. In Butera, the treating physician’s medical
opinion was based ona “one-time emergency room examination” of the claimant. Jd. Moreover, in
Butera, the treating physician “expressly stated” that her findings were based, in part, on the
claimant’s subjective complaints. Jd. Here, in contrast, Dr. Dachman’s medical opinion was based
on extensive observation and treatment of Plaintiff and there is no indication in the record that Dr.
Dachman based his medical assessment, solely or significantly on Plaintiff’s subjective complaints
of pain. Rather, as discussed throughout this opinion, Dr. Dachman assessment is based on years
of treatment, clinical observations and other independent medical evidence substantiating Plaintiff's
disabling disease.’

The Court next finds that Defendant’ s assertion that Dr. Dachman’s opinion was inconsistent
with Plaintiff’s own statements cannot prevail. First, Defendant asserts that Plaintiff attempted to
return to her full-time position as a manager at Ameritech (but could not do so because she was
declared surplus) one month after Dr. Dachman opined that Plaintiff was disabled from working and
could not sit or stand for more than thirty minute intervals. Def.’s Mem. at 13. Herein, Plaintiff has
anextensive work record reflecting that she has been employed from 1967 until she became disabled
in February 1997. (R. 137-38, 129-36.) Plaintiff has continuously indicated a strong desire to return

to work and her work ethic is clearly exemplified by the record. See e.g., Dobrowolsky v. Califano,

‘Ht also bears noting that fibromyalgia is a qualifying impairment for which subjective
pain testimony may be considered. See e.g., Sarchet, 78 F.3d at 305; Kelly v. Callahan, 133 F.3d
583 (8" Cir. 1998); Preston v. Sec’y of Health & Human Servs., 854 F.2d 815 (6 Cir. 1988)(per
curiam). As stated supra fibromyalgia is an “elusive and mysterious disease” and “its symptoms
are entirely subjective.” Sarchet, 78 F.3d at 306.

30


labeling her pain at a level of 2 or 3 out of 10.” (R. 686.)

On July 19, 1996, Dr. Dachman reported that, “At this time, having not seen [Plaintiff] for
several months, she is having a recurrence of pain in her SI joints and ischial bursal locales.” (R.
684.) Plaintiff received two SI joint injections and her physical therapy was continued. (R. 684.)
As of August 19, 1996, Plaintiff’s condition had not changed from her initial diagnosis of
tenosynovitis, fibromyalgia, and facet syndrome. (R. 683.) On September 3, 1996, Dr. Dachman
conducted a complete history and physical examination of Plaintiff and noted that there were no
changes in her condition. (R. 681.) Dr. Dachman noted SI joint discomfort and localized SI joint
tenderness was identified. (R. 681.) Plaintiff was treated with two SI joint injections of Marcaine.
(R. 681.)

As of October 19, 1996, Plaintiffs medications were noted as Zoloft, Klonopin, and Ambien.
(R. 677.) Plaintiff was given two knee injections and two SI joint injections, and therapy, soft tissue
immobilization, and electrical stimulation were continued. (R. 677.) On October 21, 1996, Dr.
Dachman sent a letter to Plaintiff explaining that Relafen? and Cytotec” had been prescribed and
what side effects Plaintiff might expect from taking these medications. (R. 675-76.) Moreover, on
the same day, Dr. Dachman reported that “At this time she is having a significant flare [up] of her
arthropathy and fibromyalgia.” (R. 674.) Injections to Plaintiff's shoulders, knees, and SI joints
were administered. (R. 674.)

In December of 1996, Plaintiff was in an automobile accident after which Dr. Dachman gave

°Relafen is prescribed for the management of the signs and symptoms of osteoarthritis
and rheumatoid arthritis. PDR at 1618.

'Cytotec is prescribed for the prevention of NSAID-induced gastric ulcers. PDR at
3202-03.


decision, he does not provide any basis or justification for establishing a one hour sit/stand
limitation.

The Court, therefore, finds that the one hour sit/stand limitation recited and employed by the
ALJ is unsupported by any substantial evidence in the record.

IL. THE ALJ ERRED BY NOT GIVING CONTROLLING WEIGHT TO THE
MEDICAL OPINION OF PLAINTIFF’S TREATING PHYSICIAN.

Plaintiff argues that the ALJ ignored repeated assessments by Dr. Dachman, Plaintiff's
treating physician, that she needed to alternate between sitting and standing every thirty minutes.
Pl.’s Mem. at 14-15,17. Defendant, on the other hand, asserts that Dr. Dachman’s thirty minute
sit/stand limitation was not supported by clinical or laboratory findings and is contradicted by other
substantial medical evidence in the record; namely, the opinions of two non-examining state agency
physicians. Def.’s Mem. at 11-12.

A treating physician’s opinion regarding the nature and severity of a medical condition is
entitled to controlling weight if it is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with other substantial evidence in the record. Clifford
v. Apfel, 227 F.3d 863, 870 (7" Cir. 2000) (citing 20 C.F.R. § 404.1527(d)(2)); SSR 96-2p.) The
SSA regulations provide that when evaluating medical opinions about a claimant’s impairment or
disability, more weight is given to “the opinion of a specialist about medical issues related to his or
her area of specialty than to the opinion of a source who is not a specialist.” 20 C.F.R. §
404,1527(d)(4). Moreover, ““[gjenerally, we give more weight to opinions from [a claimant’s]
treating sources, since these sources are likely to be the medical professionals most able to provide

a detailed, longitudinal picture of [a claimant’s] medical impairment(s) and may bring a unique

21


L:Ed.2d 842 (the report of an examining consulting physician may constitute substantial evidence
for a finding of no disability). Thus, when comparing the nonexamining state agency physicians’
sparse review and evaluation of Plaintiff's condition to that of Dr. Dachman’s extensive, lengthy
treatment and comprehensive, detailed assessment over time of Plaintiffs disabling condition
contained in the 854 page record, the state agency physicians’ minimal assessments can in no way
be viewed as substantial evidence which can serve as a basis for according Dr. Dachman’s opinion
lesser weight. See e.g., Stephens v. Heckler, 766 F.2d 284, 288 (7" Cir. 1985)(““When experience
backed by observation is set against the ‘speculative statement’ ofa consulting physician, substantial
evidence lies on the side of the treating physician.”)(citation omitted.)

The ALJ should have given controlling weight to the findings of Dr. Dachman. The only
medical evidence in the record that contradicts Dr. Dachman’s opinion comes from the
nonexamining state agency physicians’ reports. The reports from nonexamining physicians cannot
by themselves trump the findings from treating sources, Lester v. Chater, 81 F.3d 821, 831 (9" Cir,
1995) “The opinion of a nonexamining physician cannot by itself constitute substantial evidence
that justifies the rejection of the opinion of either an examining physician or a treating physician.”

dd. (citations omitted). Furthermore, there is no evidence in the record which could reasonably

‘8 continued)
override the views of a treating physician “when the consulting physician brings to the case
something of value to the administrative decision, such as greater expertise with an ailment,
greater impartiality, or a greater range of experience that facilitates a comparison of one case
against a standard or rule of decision.” 765 F.2d at 713. Garrison confirms that “a consulting
physician cannot supply substantial evidence just by contradicting reports about underlying facts
or offering unfounded speculation. But when the consulting physician adds new information or
perspectives, that may be substantial evidence.” Jd. (citations omitted.) Garrison thus reasons
that a consulting physician who specializes in the type of condition that afflicts the claimant may
be in a better position than a general practitioner to evaluate the degree of functional limitation
associated with that condition. Jd. It is important to note that Garrison was a black-lung case in
which the medical evaluations were primarily based on objective evidence, in which case there
was no reason to give preference to the opinions of the treating physician. Jd. at 714. Both the
treating and consulting physicians in Garrison had observed the claimant “first hand.” Id. at 715.

27


resting hand splint and occupational therapy. (R. 622.) Because her symptoms did not subside, on
June 20, 1994, Dr. Trotter performed carpal tunnel release surgery on Plaintiff. (R. 622-23.)

Subsequent to Plaintiff's routine post-surgery visit, she, again, saw Dr. Trotter on July 14,
1994 and July 28, 1994. (R. 621-22.) Dr. Trotter reported that Plaintiff seemed to have significant
tenosynovitis. (R. 621.) Plaintiff was treated with a Medrol Dosepak’ and Dr. Trotter considered
referring Plaintiff to a rheumatologist if she did not improve. (R. 621.) On September 1, 1994, Dr.
Trotter reported that Plaintiff still had symptoms of tenosynovitis in her right wrist and thumb and
again, he considered referring Plaintiff to a rheumatologist. (R. 621.) Subsequently, on October 4,
1994, Dr. Trotter reported that Plaintiff's symptoms had not improved and referred her to a
rheumatologist. (R. 621.)
Plaintiff’s Treating Physician

Dr. Cary Dachman, M.D. has been Plaintiff's treating physician and rheumatologist since
November 1, 1994, (R. 725.) Dr. Dachman is Board Certified in internal medicine, pain management
and rheumatology, the Director of the Schaumburg Pain Therapy Center, and a Fellow of the
American College of Rheumatology. (R. 475.) Dr. Dachman reported on November 1, 1994 that
subsequent to Plaintiff's carpal tunnel surgery in May, 1994, she was still experiencing problems
with her thumb joints locking up, radiating pain, and pain in her right hand. (R. 725.) Dr. Dachman
also noted slight discoloration in Plaintiffs right hand and significant palmar swelling that was more
diffuse than normal. (R. 728.) Dr. Dachman further noted periscapular trigger points, as well as

spasms around the neck with some limitation of neck range of motion. (R. 728.) In addition,

?Medrol Dosepak is not listed in the 56" ed. of the Physicians’ Desk Reference (“PDR”)
(56" ed. 2002).


worked at Ameritech from 1990-1997, in different capacities; including a managerial position. (R.
193.)

Plaintiff testified that in February 1997, she experienced an intense flare-up of her
fibromyalgia and arthritis, at which point she initially worked “flex-time”"! and eventually went on
medical leave. (R. 48.) Plaintiff testified that her employer (Ameritech) “declared her surplus” in
June 1997, and that she no longer had a job. (R. 50.) Since her flare-up in February 1997, Plaintiff
stated that she has been “Trying to get better. I’ve gone to physical therapy and tried to help myself
get better.” (R. 51.) Plaintiff stated that she stretches, tries to walk and takes epsom salt baths to
work out her physical pain. (R. 51-52.)

At the administrative hearing, Plaintiff testified that the pain in her back extends from her
neck to her tailbone and is present every day. (R. 69.) Plaintiff also stated that she has pain in her
groin daily. (R. 69.) She stated that she has numbness or “lack of feeling” in her feet on most days.
(R. 67-68.) Ona scale of one to ten, ten being the highest, Plaintiff testified that her average daily
pain was “about six. Can go up to eight. Some days it’s a ten.” (R. 73.) When asked how many
goods days she has in a month, Plaintiff stated two to four days, but “It doesn’t mean I won’t cry or
get angry.” (R. 73.) Plaintiff stated she has four to eight really bad days when she is unable to do
much besides stay in bed. (R. 74.) Plaintiff stated that she has difficulties with her memory and
concentration. (R. 70.) She stated that she often starts projects but is unable to complete them. (R.
70-71.) Plaintiff testified that over the years she has “changed considerably” and she has become

short-tempered with her family and friends. (R. 72.) Plaintiff stated that, “. . . I used to have all

"'Plaintiff’s “flex-time” schedule was equivalent to full-time work. (R. 49.) Plaintiff did
not work on a part-time basis. (R. 49.)

14


Ms. Hoiseth also testified regarding Dr. Dachman’s thirty minute sit/stand limitation. She
provided the following testimony in response to the ALJ’s hypothetical question:

ALJ: Ifwe were to assume further that the individual must be allowed to alternate
between sitting and standing positions at intervals of approximately 30
minutes for a period of 5 to 10 minutes on each such occasion, what impact
if any would that have upon the remainder of the work base. This would
include since we’re - I guess we’re referring only to the inspector and
assemble - inspector and packager work, right?

VE: Yes. It would eliminate the work. (R. 93.)

IV. THE ALJ’S FINDINGS AND DECISION HEREIN.

The ALJ determined that Plaintiff had not engaged in substantial gainful activity since
February 20, 1997, the onset date of her disabling condition. (R. 30.) The medical evidence
establishes that Plaintiff has fibromyalgia, sacroiliitis, ischial bursitis, pelvic malalignment, right
should impingement, right lateral epicondylitis, mild lumbar radiculopathy, history of carpal tunnel
syndrome, arthritis in her back, memory difficulties, a personality disorder and depression. (R. 30.)
The ALJ further determined that Plaintiff's impairments significantly limit her ability to perform
basic work activities and therefore, they are severe. (R. 30.) Plaintiff, however, does not have an
impairment or combination of impairments listed in, or medically equal to one listed in 20 C.F.R.
Pt. 404, Subpt. P, App. 1, Regulations No. 4. (R. 30.)

Because the ALJ found that Plaintiff's impairments did not meet or equal a listed
impairment, the ALJ assessed Plaintiff’ s RFC to determine what she could do despite her limitations.
(R. 30.) The ALJ found that Plaintiff has the RFC to perform the requirements of work except that

she could not stand and/or walk for more than a combined total of two hours in an eight-hour

workday; she could not sit for more than six hours in an eight-hour workday (with normal breaks);

16


also denied. (R. 98, 108.) Plaintiff then filed a request for an administrative hearing on July 31,
1998. (R. 111.) On January 21, 1999, Plaintiff appeared with counsel and testified at a hearing
before an Administrative Law Judge (“ALJ”). (R. 42-84.) A Vocational Expert (“VE”) was also
present and testified at the hearing. (R. 84-94.)

On June 25, 1999, the ALI issued his decision finding that Plaintiff was not disabled because
she had the residual functional capacity to perform the requirements of work with stated limitations.
(R. 30-31.) Plaintiff filed a request for review of the ALJ’s decision, and on July 24, 2001, the
Appeals Council denied Plaintiff’s request for review making the ALJ’s decision the final decision
of the Commissioner. (R. 7-8, 14.) Pursuant to 42 U.S.C. § 405(g), Plaintiff initiated this civil action
for judicial review of the Commissioner’s final decision.

BACKGROUND FACTS
L MEDICAL EVIDENCE

A. Plaintiff’s Physical Condition

Plaintiff’s allegations of disability are based on the following conditions: fibromyalgia,
severe arthritis in her back and hands and tendentious, sacroiliitis, pelvic malalignment, weakness
in her hands, pain in her back and right shoulder, right lateral epicondylitis, chronic pain and fatigue,
depression, anxiety, and personality disorder. (R. 144, 177, 183-85, 190, 197, 205, 667.)

On December 30, 1993, Dr. J. Uhler, M.D. reported that an X-ray of Plaintiff's spine revealed
narrowing of the disc space on C5-6. (R. 209.) Dr. S. Sherman reported on January 14, 1994 that
EMG testing revealed carpal tunnel syndrome in Plaintiff's right wrist. (R. 207-208.) Plaintiff was
subsequently diagnosed with carpal tunnel syndrome in her right wrist by Dr. David Trotter, MOD.

(R. 621-22.) Dr. Trotter treated Plaintiff's condition with a night splint program which included a


* normal breaks. Def.’s Mem. at 11; (R. 636, 641, 749, 754.)

The Court finds, however, that the ALJ erred by discrediting the opinion of Dr. Dachman and
accepting the opinions of two non-examining state agency physicians. First, the Court notes that Dr.
Dachman is the Director of the Schaumburg Pain Therapy Center, Board Certified in internal
medicine, pain management and rheumatology, and a Fellow of the American College of
Rheumatology. (R. 475.) As demonstrated by Dr. Dachman’s medical credentials, he clearly
possesses extensive, specialized medical expertise in the treatment of rheumatic disorders; including
fibromyalgia. See e.g., Grindle v. Sullivan, 774 F.Supp.1501, 1509 (N.D. Ill. 1991)(specialization
and expertise play a role in determining which physicians’ evaluations should be given more
weight); 20 C.F.R. § 404.1527(d)(2)(ii)(the more knowledge a treating physician has about a
claimant’s impairment, the more weight is given to that source’s medical opinion); 20 C.F.R. §
404.1527(d)(5)(more weight is given to the opinion of a specialist about medical issues related to
his area of specialty than to the opinion of a source who is not a specialist). Based on the record,
however, the state agency physicians are neither specialists in any particular field of medicine nor
do they have any specialized expertise that would allow for a valid assessment of Plaintiff's
condition.'” Therefore, the state agency physicians’ assessments should have been accorded lesser
weight that of Dr. Dachman’s comprehensive assessment of Plaintiff that began in November 1994
and extended over a period of years. See also 20 C.F.R. § 404.1527(d)(2)(i)(the longer a treating
physician has treated a claimant, the more weight is given to that source’s medical opinion).

Next, the Court notes that the state agency physicians never examined Plaintiff; rather, they
merely reviewed her medical file. See e.g., 20 C.F.R. § 404.1527(d)(1) (more weight is given to the

opinion of a physician who has examined the claimant than to one who did not examine the

‘It is unclear from the record if the state agency physicians are specialists in any
particular field of medicine or what their medical backgrounds entail.

25


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
)
PAMELA CRINER, )
)
Plaintiff, )
)
vy. ) Case No. 01 C 7477
)
JO ANNE B. BARNHART, ) Magistrate Judge Ian H. Levin
Commissioner of the Social Security )
Administration, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Pamela Criner (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g) for
judicial review of the final decision of the Commissioner of the Social Security Administration (the
“SSA”) denying her application for Disability Insurance Benefits (“DIB”) under the Social Security
Act (the “Act”). Before the Court is Plaintiff's Motion for Summary Judgment or Remand, and
Defendant’s Motion for Summary Judgment. For the reasons set forth below, the Court reverses the
ALJ’s decision and remands the cause for an immediate award of benefits.

PROCEDURAL HISTORY

On November 3, 1997, Plaintiff filed an application for DIB stating that she became unable

to work on February 20, 1997, due to disabling conditions.' (R. 126-28.) Plaintiff's initial application

for benefits was denied, and subsequently, upon review, Plaintiff’ s request for reconsideration was

'References are to the certified administrative record prepared by the Commissioner and
filed with this Court pursuant to 42 U.S.C. § 405(g).

In making its arguments herein, Defendant does not contest the disability date of February
20, 1997 argued by the Plaintiff.

DOCKETED

JUL 1 0 2002


*,% The Court also notes that there is no evidence in the record to indicate that Dr. Dachman’s
medical opinion lacks credibility. See e.g., Dixon v. Massanari, 270 F.3d 1171, 1177 (7" Cir.
2001)(“The patient’s regular physician may want to do a favor for a friend and client, and so the
treating physician may too quickly find disability.”)(citation omitted.) In Dixon, the ALJ determined
that “[the plaintiff's treating physician] was not completely objective--that she gave [the plaintiff]
the benefit of the doubt whenever possible.” Jd. at 1177. Herein, the Court notes that there is no
evidence in the record to indicate that Dr. Dachman was biased in Plaintiff’s favor. Rather, it only
appears that Dr. Dachman, a medical specialist in this area, based his assessment of Plaintiff's
condition on his extensive long term treatment and medical expertise when he determined that it was
impossible for Plaintiff to sit or stand for periods of thirty minutes without excruciating pain and that
she would, therefore, need to alternate between these positions at thirty minute intervals. (R. 667.)
Moreover, “[s]imply because a nonexamining physician may disagree with the conclusions of a
treating physician, that is not enough to support a finding that the treating physician’s evidence is
not credible.” Whitney, 695 F.2d at 789, Therefore, because the Court finds that Dr. Dachman is
credible, in that his opinion was based on years of treatment, clinical observations and other
independent medical evidence substantiating Plaintiff's disease, his opinion, as discussed supra is
entitled to controlling weight because he had “greater familiarity” with Plaintiff's conditions and
circumstances. Grindle, 774 F.Supp. at 1508; Whitney, 695 F.2d at 789 (the report of a treating
physician should be favored over that of a consultant who merely reviews the medical file and does
not examine the claimant, unless the treating physician is not credible).

In view of the foregoing, the Court finds that Defendant’s additional arguments do not
constitute substantial evidence in the record that would warrant a finding that Plaintiff was not

disabled.

33


~ support the conclusion that Dr. Dachman’s findings are medically unsupported and inconsistent with
other substantial evidence in the record. Rather, the only reasonable interpretation from the record
is that Dr. Dachman’s findings are medically supported based on years of expert treatment, clinical
observations and other independent medical evidence (e.g., MRI’s and EMG’s) substantiating
Plaintiff's disabling disease. The ALJ, therefore, should have given controlling weight to Dr.
Dachman’s findings.

Since the ALJ should have given controlling weight to Dr. Dachman’s findings, it is pivotal
to note that at the administrative hearing, the VE provided the following testimony based on Dr.
Dachman’s thirty minute sit/stand limitation:

ALJ: Ifwe were to assume further that the individual must be allowed to alternate
between sitting and standing positions at intervals of approximately 30
minutes for a period of 5 to 10 minutes on each such occasion, what impact
if any would that have upon the remainder of the work base. This would
include since we’re - I guess we’re referring only to the inspector and
assemble - inspector and packager work, right?

VE: Yes. It would eliminate the work. (R. 93.)

Consequently, and in short, a finding of disability is called for.

Cc. Other Substantial Evidence

Defendant, however, contends that other substantial evidence in the record supports the
ALJ’s conclusion that Plaintiff is not disabled. Specifically, Defendant asserts that Dr. Dachman’s
own Clinical findings do not support such a severe limitation in sitting and standing; namely, that,
Plaintiff can only sit or stand for thirty minute intervals; Dr. Dachman’s medical opinion was based,
in large part, on Plaintiffs subjective complaints; and Dr. Dachman’s medical opinion was
inconsistent with Plaintiff's own statements. P1.’s Mem. at 12-13.

The Court finds Defendant contention that Dr. Dachman’s own clinical findings do not

support a finding that Plaintiff must alternate between sitting and standing positions at thirty minute

28


Dr. DeWitt indicated that Plaintiffs symptoms had been present for more than a year. (R. 633.)
There was also a marked impairment in Plaintiff's functional ability with respect to her familial and
peer relationships, financial situation, interests in hobbies or activities, physical health, sleep habits,
and ability to concentrate. (R. 631, 633.) Extreme impairment was also noted with respect to
Plaintiffs job functioning. (R. 631, 633.) It was further noted that Plaintiff was being treated with
Zoloft. (R. 632.)

On April 15, 1998, Larry Gelman, Psy.D. conducted a consultative psychological evaluation.
(R.777.) In Dr. Gelman’s report, he stated that Plaintiff related to him in a cooperative and
responsive manner, maintained appropriate eye contact and displayed an adequate awareness of her
situation. (R. 778.) Dr. Gelman further stated that, “Very often, [Plaintiff] needed to move around
and change her posture.” (R. 778.) Dr. Gelman observed that Plaintiff's speech was slow and
pressured, and that her thought process was slow and often indecisive. (R. 778.) He further reported
that “[Plaintiff’s] expressed thought content was comprised of helplessness, hopelessness, somatic
concerns, and fleeting suicidal ideation.” (R. 778.) Dr. Gelman also stated that “[Plaintiff] reported
that she cries easily and when she is angered, she will throw articles or will need to move around a
lot.” (R. 79.)

With respect to cognitive functioning, Dr. Gelman indicated that Plaintiff performed lower
than might be expected on a visual organization assessment. (R. 779.) Plaintiff also appeared to be
severely depressed with feelings of extreme vulnerability and was often edgy, irritable, apprehensive,
negative, and hypersensitive. (R. 779.) Dr. Gelman’s diagnostic impression was as follows:

The onset of [Plaintiff's] predominant symptoms appear to be correlated with

reported sequelae to the auto accident in 1998. Although specialized
neuropsychological and neurological assessments would be recommended to confirm

12


these good qualities, but I don’t anymore.” (R. 72.)

Plaintiff testified that her husband, daughter and maid service took care of household tasks;
such as, laundry and cooking. (R. 74.) With respect to shopping, Plaintiff stated that “. . . my
husband takes me. We try to do it together, or he’ll go and do the errands and leave me at home.”
(R. 75.) Plaintiff also indicated that her other daily activities included visiting family, watching
television, reading, doing home exercises, and doing small tasks. (R. 202-203, 206.)

In terms of walking, Plaintiff testified that she “probably could walk 20 minutes, or 30
minutes.” (R. 65.) Plaintiff stated that she is able to stand for about twenty minutes, but that she
must lean against things before her back starts to cause her problems. (R. 76.) Plaintiff also stated
she is able to sit about twenty minutes before she feels the need to get up and move around. (R. 76.)
Plaintiff also indicated that she wore a back brace and right wrist splint occasionally. (R. 65-66.)
Il. VOCATIONAL EXPERT’S TESTIMONY

Ms. Sheryl Hoiseth, a VE, testified at the administrative hearing. (R. 84-94.) Ms. Hoiseth
classified Plaintiff’ s past management and supervisory positions as skilled, light work. (R. 86-87.)

Ms. Hoiseth was asked to assume a hypothetical person of Plaintiff's age, educational level,
and past work experience. (R. 87-88.) The ALJ asked Ms. Hoiseth if a hypothetical person with
Plaintiffs vocational characteristics and residual functional capacity (“RFC”) who could stand
and/or walk for two hours in an eight-hour workday and sit for six hours in an eight-hour workday
(with normal breaks) could perform any jobs in the national economy. (R. 88-92.) Ms. Hoiseth
stated that while Plaintiff could not return to her past relevant work, (R. 88-89) she had the capacity
to perform a limited range of sedentary work and consequently, she could perform the following

jobs: packager (approximately 2,000) and inspector (approximately 1,000). (R. 90-94.)

15