United States District Court, E.D. Wisconsin
Jody Lynn Jensen, Plaintiff: Thomas A Schuessler, Quincey
Becker Schuessler & Chase SC, Mayville, WI USA.
Commissioner of Social Security, Defendant: Brian E Pawlak,
LEAD ATTORNEY, United States Department of Justice (ED-WI),
Office Of The Us Attorney, Milwaukee, WI USA.
AND ORDER FOR REVERSAL AND REMAND
C. Griesbach, Chief United States District Judge.
Jody Lynn Jensen seeks review of the final decision of the
Commissioner of Social Security denying her application for
disability insurance benefits under the Social Security Act,
42 U.S.C. § § 416(i), 423(d). For the reasons that
follow, the Commissioner's decision will be reversed and
remanded pursuant to § 405(g) (sentence four).
filed her application for benefits in October 2011, alleging
an onset of disability date of October 1, 2009, at which time
she was thirty-eight years old. Plaintiff listed the
following as physical or mental conditions that limited her
ability to work: debilitating migraines, neck and back pain,
asthma, fibromyalgia, bulging discs in neck, right leg and
foot pain, depression, endometriosis, jaw pain, left wrist
tendonitis, and short-term memory loss. R. 193. After her
applications were denied initially and on reconsideration,
Plaintiff requested a hearing. An Administrative Law Judge
(ALJ) held a hearing in August 2013, at which Plaintiff,
represented by counsel, testified.
outset of the hearing, Plaintiff amended her onset date to
September 30, 2011, so as to avoid any period of time when
she was receiving unemployment benefits. R. 18. Plaintiff,
who was by then forty-three years old, testified she was
married with four children, the oldest three of whom were
adults and the youngest age three. R. 19-20. In addition to
her husband and three-yearold child, Plaintiff's
twenty-year-old daughter, her daughter's ten-month-old
child, and Plaintiff's mother, who had suffered a stroke,
lived with her. R. 21, 33. Plaintiff testified that she
completed high school and a vocational course to become a
certified nursing assistant (CNA). She had last worked
full-time as a CNA in 2010 and claimed that she was let go
because of absenteeism due to her chronic migraine headaches.
testified that it was her headaches that prevented her from
working since that time. R. 24. She testified that she had a
problem with headaches for most of her life. She claimed she
also had " a lot of neck pain and neck problems, which
also help contribute to the headaches." R. 24. As for
treatment since her alleged onset date, Plaintiff testified:
I see my doctors and they give me medication to help with my
headaches. I have a device where, an electric stimulator that
helps with my back and my neck in hopes of reducing pain that
will eventually cause a headache. And I go to the ER a lot,
for my headaches and my neck and my asthma.
R. 24. The medications prescribed for Plaintiff's
headaches consisted of Vicodin
for pain, Toradol for more extreme pain, and Imitrex
injections for very, very extreme pain if the other
medications did not work. R 24. Plaintiff testified the
Vicodin and Imitrex made her tired. Imitrex in particular put
her to sleep. The Toradol made her nauseous at times and
tired also. R. 31-32.
testified she had been on the same medications and same
dosages for " a long time" and nothing had changed.
The medications helped " a lot of the time," but
when they did not she went to the emergency room. The number
of times she went to the emergency room varied between once
or twice per month and four or five times. R. 26. She
testified that when she went to the emergency room she'd
be given an IV but claimed she did not know what medication
she was given. R 27.
time of the hearing, Plaintiff testified she was having four
to eight severe headaches per month which required " my
big medicine." R. 44. Plaintiff described the severe
headaches as starting in her left eye and progressing to both
eyes and her temples and across her forehead. She described
the pain as piercing and throbbing, making her light
sensitive and causing nausea and vomiting to the point that
she would cry " ferociously." R. 43. Plaintiff
claimed her severe headaches would last up to four days. R.
27. She claimed they were more frequent, almost daily, when
she did not control her environment. She controlled her
environment by staying at home with the air conditioner on
and avoiding odors such as fresh-cut grass, campfire smoke,
dish soap, laundry soap, perfumes and lotions that triggered
her attacks. R. 44-45.
also claimed severe back and neck pain prevented her from
standing or sitting for long periods of time. R. 32. She
needed to sit down and take breaks even to wash the dishes.
If she stood straight for a half hour, she would experience
" a lot of pain in my lower back and in my upper back
right below my neck and my left shoulder. I have a lot of
pain there and it does get thick and swollen if I stand for a
long period of time. My left shoulder tends to swell very
large on top." R. 33-34. Plaintiff claimed that if she
lifted anything or bent over a certain way it would pull the
muscle in her neck and give her a sharp, piercing pain at the
base of her neck which would lead to another headache. R. 34.
As a result of her physical impairments, Plaintiff claimed
she could walk with discomfort down the street about four or
five driveways from her house even with sit-down breaks. She
could lift dishes, but lifting her fifteen-pound grandchild
caused difficulties. R. 34-35.
noted, Plaintiff's primary complaint was migraine
headaches. Although Plaintiff reportedly had problems with
migraine headaches since she was a teenager, the first
mention of any headaches in the medical evidence is following
the July 1995 motor vehicle accident when she would have been
twenty-four years old. Though she reported the accident was
head-on, she told a neurologist who saw her in January 1996
that she drove home and did not seek medical care at the
time. The next morning, however, she reported having a severe
headache. She was treated with physical therapy for mild
cervical strain and TMJ, but claimed she had daily severe
headaches through September 1995. R. 664. Notwithstanding the
foregoing, according to the November 1995 report of her
family physician, Plaintiff was hit on the driver's side
by a drunk driver and had neck and back pain since. R. 305.
In any event, by the time she saw the neurologist in January
1996, Plaintiff reported she was down to one-to-three bad
headaches per month and was planning to sue the driver of the
truck that hit her, though a March 1996 report notes she was
in a second motor vehicle accident several days ago. R. 662.
The neurologist's diagnosis was post concussive syndrome.
further treatment for headaches, migraine or other, appears
in the medical record until April 30, 2009, when Plaintiff
presented at Family Medical Center in Green Bay, Wisconsin to
establish care for migraines and asthma with Dr. Edward
Bongiorno. R. 339-40. She reported that her migraines were
more frequent since she had been injured in the collapse of
the deck at her house the previous month. R. 316, 339. There
is no medical report from any hospital relating to the deck
accident in the record. In any event, Plaintiff's
prescription for Vicodin, apparently from the March accident,
was refilled. R. 340.
returned to the Family Medical Center on September 25, 2009,
with a chief complaint of asthma. R. 336. Plaintiff also
reported having migraines daily and was continued on Vicodin
by Dr. Bongiorno. Plaintiff was directed to call the clinic
later, however, and advise Dr. Bongiorno " which
medication she has been on in the past for
prophylactic." R. 336-37.
next visit at the Family Medical Center was on November 9,
2009, for a chief complaint of flu symptoms. This time
Plaintiff was seen by Dr. James Gast, who placed her on a
course of prednisone for her asthma. Plaintiff also requested
a refill on her Vicodin, but Dr. Gast declined her request.
He told her that he would want to try other medications for
her headaches first. According to the note, " she was
not interested in that at this point," but could "
recheck with us if things are not improving." R. 334-35.
days later, however, Plaintiff began seeing a new doctor at
the Kaukauna Clinic in Kaukauna, Wisconsin, about twenty
miles south of Green Bay. On November 20, 2009, Plaintiff met
with Dr. Paul Russo at the Kaukauna Clinic and explained that
she was switching care from her doctor in Green Bay who had
retired. Plaintiff reported she had a history of migraine
headaches dating to age ten. She explained that Alprazolam or
hydrocodone usually gave her the relief she needed. If not,
she used injectable Imitrex. After taking a detailed history
from Plaintiff, Dr. Russo refilled her Vicodin, Alprazolam,
and Imitrex prescriptions. R. 434-35.
again saw Dr. Russo on January 7, 2010 for a pre-employment
physical examination apparently required before she began her
new employment as a CNA at Emerald Nursing Facility.
Plaintiff reported no acute concerns or illnesses. She denied
any prior back or shoulder injury, as well as any other
condition that would prevent her from performing her job as a
CNA. Based on his examination and the history given by
Plaintiff, Dr. Russo reported " no contraindications to
[Plaintiff] performing work at Emerald." R. 431.
Dr. Russo's conclusion that there were no
contraindications to Plaintiff performing work as a CNA at
Emerald, she received a final warning for failing to come to
work or even call in and explain why she was not there only
three months later on March 7, 2010. R. 273. Plaintiff
attributed her absence and failure to call in to a severe
migraine headache. Plaintiff was finally terminated or
resigned the following month after she was found asleep in
her car during her shift. She testified that she dozed off
after she got a headache at work and went out to her car to
take her medication. R. 36.
Plaintiff's last visit with the Family Medical Center was
on April 1, 2010, with a chief complaint of migraines. She
again saw Dr. Bongiorno. Plaintiff was fifteen weeks pregnant
at the time, but explained that her Ob/Gyn was aware
that she is using Vicodin sparingly for her migraines. Her
prescription was refilled, but she was told to use it
sparingly. A copy of the report was sent to Plaintiff's
Ob/Gyn, Dr. Allahyar Jazayeri of Women's Specialty Care,
30, 2010, Plaintiff telephoned the Brain, Spine & Pain
Center at Bellin Health requesting a prescription for
Vicodin. She stated that a neurologist at the Center told her
it was okay for her to use Vicodin for her headaches. She
claimed she did not have a family doctor and so her Ob/Gyn
referred her to the Center for the prescription. R. 356-57.
fact, however, the record shows that a month-and-a-half
earlier, on May 18, 2010, Plaintiff was seen at the Brain,
Spine & Pain Center by Dr. Brenda Dierschke upon the
request of Dr. Jazayeri, for evaluation and treatment of
headaches and neck pain. Plaintiff told Dr. Dierschke that
she had been on Vicodin for twenty years. She reported that
Dr. Jazayeri had recommended that she not take Vicodin for
the sake of her baby. R. 366. After taking a detailed
history, Dr. Dierschke set out a recommendation and plan that
included a referral to physical therapy, a referral to
neurology for evaluation and treatment recommendations for
headaches, checking with Dr. Jazayeri as to what medications
she could take, obtaining treatment records for the 1995
accident, and a psychological evaluation and treatment
recommendation as well as an opioid evaluation. Plaintiff
acknowledged that she was not to take Vicodin for the sake of
her baby. R. 368.
7, 2010, Plaintiff was seen at the Brain, Spine & Pain
Center for a follow-up visit scheduled in response to her
June 30 telephone request for a Vicodin prescription. She was
twenty-eight weeks pregnant. Plaintiff claimed she was
suffering from a migraine headache and needed a refill of her
Vicodin prescription. At that time, she identified Dr. T.
Gallagher of Aurora as her Ob/Gyn. His first consult with her
had been the day before. Plaintiff claimed her last dose of
Vicodin was three-and-a-half weeks earlier. A notation on the
patient visit report reads " where Vicodin coming
from." R. 351. Plaintiff was discharged with directions
to get a list of past medications she had tried. She was told
that the Center would call her later that day for an
appointment with Dr. Dierschke. R. 350. There are no further
records from the Brain, Spine and Pain Center, however, nor
are there any records from Plaintiff's Ob/Gyns.
there is a gap in the medical record until October 11, 2010,
when Plaintiff returned to see Dr. Russo at the Kaukauna
Clinic for a migraine she stated had been going on
intermittently for four days. The report notes that Plaintiff
had her fourth C-section on September 17, 2010. Plaintiff
reported to Dr. Russo that on October 9, 2010, she had gone
to the emergency room (ER) at Aurora BayCare Medical Center
and was given a shot of " some type of medication."
R. 428. The ER record from Aurora states she was "
medicated with Reglan, Toradol and Dilaudid, with resolution
of her headache." She was discharged with instructions
" to rest at home" and " recheck if any
problems." R. 712-13. Two days later on October 11, Dr.
Russo gave Plaintiff a prescription for 20 Vicodin tablets
with a follow-up in two months. R. 428.
weeks later on November 2, 2010, Plaintiff returned to Dr.
Russo with a complaint of migraine headache and chronic neck
pain. The clinic note states Plaintiff had an " MRI of
the cspine which showed moderate to severe left neural
foraminal stenosis at the C5-6 level, mild cord compression
and an MRI of the thoracic level that showed mild
degenerative changes." Dr. Russo prescribed Diclofenac
and back pain and refilled Plaintiff's Vicodin
prescription for 40 tablets. He also recommended a physiatry
consult and a recheck in two months. R. 424-25, 466, 467.
days later on November 12, 2010, Plaintiff returned to Dr.
Russo with a complaint of a migraine headache that began at
3:00 a.m. that morning that had not improved with Vicodin.
The clinic note states: " Here with husband. History of
migraines and she has a known herniated disc in her neck. She
hasn't yet seen a spine surgeon." Dr. Russo
administered an injection of 60 mg of Toradol. R.421-22.
than two weeks later, on November 25, 2010, Plaintiff
presented at the ER at St. Mary's Hospital again
complaining of a generalized migraine headache. Plaintiff
reported that she had a long-standing history of many years
of migraines for which she usually received an injection from
her physician but that his office was closed for
Thanksgiving. She reported that headache had lasted eighteen
hours and she had no relief from over-the-counter pain
medications. The report lists Plaintiff's medications as
Flovent and Albuterol, but does not mention Vicodin.
Plaintiff stated that she was generally given Demerol and
Vistaril for her headaches when she went to the hospital. She
was given an injection of 50 mg of Demerol and 25 mg of
Vistaril. R. 453.
January 6, 2011, Plaintiff was seen by Dr. John Revord, a
physiatrist at the Neuro Spine Center of Wisconsin in
Appleton, for a consultative evaluation requested by Dr.
Russo. Plaintiff described her previous motor vehicle
accidents from the 1990s and reported that in approximately
2002 she developed " the gradual, atraumatic onset of
thoracic and low back pain which is now constant."
Plaintiff claimed that a deck collapse in 2008 exacerbated
her cervical, thoracic and lumbar pain. R. 382. (The deck
incident appears to have actually happened in 2009. R. 316.)
She reported that " her current symptoms are constant
cervical, thoracic, and lumbar pain which are increased by