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Jensen v. Colvin

United States District Court, E.D. Wisconsin

February 23, 2016

CAROLYN W. COLVIN, Acting Commissioner for Social Security, Defendant

          For Jody Lynn Jensen, Plaintiff: Thomas A Schuessler, Quincey Becker Schuessler & Chase SC, Mayville, WI USA.

         For 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.

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         William C. Griesbach, Chief United States District Judge.

         Plaintiff 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).

         I. BACKGROUND

         Plaintiff 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.

         A. Plaintiff's Testimony

         At the 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. R. 22.

         Plaintiff 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

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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.

         Plaintiff 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.

         At the 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.

         Plaintiff 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.

         B. Medical Evidence

         As 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

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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. R. 664-66.

         No 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.

         Plaintiff 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.

         Plaintiff's 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.

         Eleven 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.

         Plaintiff 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.

         Notwithstanding 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.

         Meanwhile, 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

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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, R. 331-33.

         On June 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.

         In 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.

         On July 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.

         Instead, 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.

         Three 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 for neck

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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.

         Ten 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.

         Less 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.

         On 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 all ...

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