Melissa Vanprooyen v. Nancy A. Berryhill

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-3653
MELISSA VANPROOYEN,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social
Security,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 C 6755 — Young B. Kim, Magistrate Judge.
____________________
ARGUED JULY 6, 2017 — DECIDED JULY 21, 2017
____________________
Before POSNER, KANNE, and SYKES, Circuit Judges.
POSNER, Circuit Judge. Melissa Vanprooyen applied for
Disability Insurance Benefits and Supplemental Security In-
come, claiming disability based on a litany of maladies. An
administrative law judge found her impairments to be se-
2 No. 16-3653
vere but not disabling and denied benefits. The Appeals
Council of the Social Security Administration denied review,
and the district court (a magistrate judge presiding by con-
sent) upheld the administrative law judge’s decision, precip-
itating this appeal.
Vanprooyen initially claimed to have become disabled in
March 2010, when she was 26 years old and fell down a
flight of stairs and suffered a brain hemorrhage. She also al-
leged a history of post-traumatic stress disorder, short-term
memory loss, attention-deficit hyperactivity disorder, anxie-
ty, seizures, and fibromyalgia.
Already by March 2009 Vanprooyen’s personal physi-
cian, Dr. Dorothy Jones, had prescribed generic Xanax to
treat her anxiety and panic attacks. In July, after she had be-
gun inpatient drug treatment, Dr. Jones noted that she was
taking a different anti-anxiety medication and pronounced
her “medically stable.” In October and December a psychia-
trist named Harlan Alexander treated Vanprooyen for anxie-
ty, depression, and bipolar disorder. During one session
Vanprooyen revealed a history of addiction and said her
Xanax prescription kept running out because she must
“double it to make it work.”
Her fall on the stairs caused a traumatic brain hemor-
rhage and brain contusion in the left hemisphere, which re-
quired her hospitalization. An EEG (electroencephalogram)
performed to rule out epileptic activity showed mild brain
damage. After a week she was discharged from the hospital
with a doctor’s note saying that she could resume working
after her next neurosurgical appointment, which would be in
a week or two. She was prescribed medication, including Ul-
tram, for general pain, migraine headaches, and seizures.
No. 16-3653 3
A week later Vanprooyen saw Dr. Alexander. She told
him she’d experienced strong headaches since the fall and
had run out of the pain medication given her by the hospital
doctors. The psychiatrist prescribed her Abilify, Zoloft, Tra-
zadone, and Xanax.
A month after her fall, Vanprooyen had a neurosurgery
follow-up by a Dr. Nassir Mansour, who declared she’d
“made a very good recovery.” She was alert, her cranial
nerves intact, had full strength, and was “very keen to go
back to her job” as a waitress. But just a week later she suf-
fered a tonic-clonic (i.e., grand mal) seizure. She had another
seizure in the emergency room and was taken to intensive
care suffering from a subdural hematoma (bleeding under
the skull that can cause serious brain damage, including
death). Dr. Jones treated her at the hospital and noted that
her seizure medication had been discontinued. A neurologist
obtained a CT scan (a scan for determining internal injuries)
and noted that it showed softened brain tissue. He opined
that Vanprooyen “may be relatively stable” but said she
should take anti-epileptic medication for at least two years.
He ruled out driving for six months, climbing to any height,
using machinery, drinking alcohol, showering without assis-
tance, or working more than eight hours a day. Though
complying with the limitations imposed by him,
Vanprooyen continued to have headaches, and a couple of
weeks later the doctor changed her anti-seizure medica-
tion—which however she stopped taking almost immediate-
ly because it made her drowsy.
In December 2010 she suffered another serious seizure,
and the neurologist reduced her work ceiling to six hours a
day while also stressing the importance of her taking her
4 No. 16-3653
medication. A few weeks later he reviewed a new EEG,
which revealed abnormalities in Vanprooyen’s brain capable
of causing seizures.
In January 2011, Vanprooyen described to Dr. Alexander,
the psychiatrist, worsening anxiety, migraines, and difficulty
sleeping. At her next appointment she reported that her
mother had thrown out her Xanax. The Xanax had helped,
so Dr. Alexander refilled the prescription.
Vanprooyen delivered a baby in October 2011. She hadn’t
suffered a seizure since December 2010 even though another
physician had changed her anti-seizure medication because
of negative side effects, noting that Vanprooyen’s medical
issues included the use of methadone to combat drug addic-
tion.
Eight days after her child was born, Vanprooyen went to
the emergency room after experiencing several days of pain
(which she scored at 7 of 10) radiating from her lower back
to her legs. An emergency room doctor attributed the pain to
fibromyalgia. After leaving the hospital she returned to Dr.
Alexander and told him she’d been anxious throughout her
pregnancy and wanted to resume taking Xanax (which ap-
parently she’d stopped taking while pregnant). Although the
doctor refilled the prescription, Vanprooyen’s anxiety didn’t
abate, and soon she began reporting memory loss, greater
difficulty sleeping, worsening generalized pain, and head-
aches. Dr. Alexander added probable PTSD and fibromyal-
gia to his diagnoses.
At the end of 2011 Vanprooyen changed psychiatrists,
seeing Dr. Paul Carter from then until May 2012, which is
when the medical record in this case ends. She told him that
No. 16-3653 5
anxiety and poor attention were her principal problems. He
agreed with Dr. Alexander’s diagnoses of generalized anxie-
ty disorder, bipolar disorder, PTSD, and fibromyalgia but
added opiate dependency.
She visited two rheumatologists in 2012 concerning her
fibromyalgia. She reported having been diagnosed with the
disease 10 years earlier with an average pain level of 4 or 5
out of 10 and greater pain in cold weather. One of the doc-
tors diagnosed Vanprooyen as “diffusely tender at 18/18
points and multiple control points.” The other suggested
that she visit a fibromyalgia clinic, but the record is silent on
whether she did so.
In May 2012, Dr. Michael Stone, a state-agency clinical
psychologist, examined Vanprooyen, diagnosed generalized
anxiety disorder with panic attacks, ADHD, PTSD, short-
term memory loss, seizures, “brain damage,” and fibrom-
yalgia, and called her a “good informant” who could “re-
member a good degree of her past history.” During the ex-
amination she had “exhibited problems maintaining a con-
sistent level of attention and concentration.” He termed her
prognosis “guarded” and said that given her “emotional ad-
justment and medical difficulties” she was “unable to man-
age benefits [on] her own behalf at this time.”
A month later a state-agency physician, Dr. Bharati Jha-
veri, reviewed the medical record and opined that
Vanprooyen must avoid ladders, ropes, and scaffoldings be-
cause of her head injury, seizures, and fibromyalgia but
could sit, stand, or walk up to 6 hours each during an 8-hour
workday and also could lift 10 pounds frequently and
20 pounds occasionally. He concluded that she retained the
ability to work.
6 No. 16-3653
Another state-agency psychologist, Dr. Ellen Rozenfeld,
also reviewed the medical record and opined that, because
of sustained limitations in concentration and persistence,
Vanprooyen “would be moderately impaired for de-
tailed/complex tasks but adequate for completion of routine,
repetitive tasks.” Likewise, in September 2012 a second state-
agency physician, Dr. Glen Pittman, having reviewed the
medical record agreed with Dr. Rozenfeld regarding
Vanprooyen’s limitations in concentration and persistence.
In October 2012, a new psychiatrist wrote that
Vanprooyen’s “ability to maintain focus, mental organiza-
tion and memory is impaired.” He rated as “fair” or “poor”
her ability to comprehend, remember, or follow instructions,
but assessed most of her social skills as “good.”
The same month Dr. Jones conducted a medical-source
assessment of her fibromyalgia, identifying her symptoms as
multiple tender points, nonrestorative sleep, chronic fatigue,
morning stiffness, frequent and severe headaches, numb-
ness, tingling, and anxiety. She wrote that Vanprooyen’s
pain and muscle tenderness affected her daily, and rated her
pain at 7 out of 10. She concluded that Vanprooyen must
move every 20 minutes, cannot stand more than 2 hours at a
time, and must take unscheduled breaks—that she was “in-
capable of even ‘low stress’ work” and would probably miss
work more than 4 days per month.
The Social Security Administration had denied benefits
initially in June 2012 and did so again on reconsideration in
September 2012. At a hearing before an administrative law
judge in April 2013, Vanprooyen described how her medical
issues affected her daily life. Her fiancé was working part-
time with a varying schedule. Vanprooyen cared for their
No. 16-3653 7
infant daughter with the assistance of her mother. Although
she was able to change the baby’s diaper, she couldn’t hold
her daughter in her arms for long because she weighed
21 pounds. After her fall down the stairs she’d resumed
waitressing three days a week but struggled with balance,
writing, memory, and strength. Her coworkers helped out,
but she stopped working because “it wasn’t worth my
coworkers to have to carry my weight.”
Vanprooyen testified at the hearing that about three
times a week she suffers a migraine on the left side where
she was injured in the fall. To recover from a migraine she
must isolate herself in a dark, quiet room, but when caring
for her daughter she has no choice except to “deal with it.”
She further testified that she experiences short-term memory
loss, that her fibromyalgia pain occurs mostly in her back
and knees and is treated with nonprescription medications
and methadone, and that she no longer can take prescription
pain medication, other than methadone, given her history of
addiction. Her fiancé testified, corroborating Vanprooyen’s
account of her migraines and memory issues.
During the hearing a vocational expert testified that
Vanprooyen couldn’t perform her past work given the re-
sidual functional capacity described by the administrative
law judge (capable of occasionally balancing, reaching,
climbing stairs and ramps, kneeling, crouching, and crawl-
ing; limited to assisting with simple, routine tasks that can
be learned through short demonstrations; and unable to
work around hazardous conditions, operate a motor vehicle,
or endure loud environments) but could work as a counter
clerk, cashier, or a shipping and routing clerk. But he
acknowledged that she is unemployable if she will be off
8 No. 16-3653
task or pace 25% of the time, will miss 4 or more days per
month, cannot sit, stand, or walk continuously for at least
4 hours during an 8-hour workday, or will require special
supervision to sustain an ordinary routine.
The administrative law judge rejected Vanprooyen’s ac-
count of disabling limitations, stating that the medical record
revealed a “good recovery” after her fall, that her seizures
were being controlled with medication, that she continued to
engage in a “wide range” of daily activities, and that with
help from coworkers she had continued working at “sub-
stantial gainful activity levels” for 20 to 21 months after the
fall and had stopped working only after giving birth.
The administrative law judge gave “substantial” weight
to the opinions of the stage-agency physicians because, in
her view, those doctors had provided “a good synopsis of
the evidence” and offered opinions “consistent with the
overall record.” She gave “some” weight to the neurologist
who had predicted—seven days before Vanprooyen’s first
seizure—that she could return to her job and maintain a
normal life despite her fall down the stairs, and purported to
give “great” weight to the neurologist who had begun treat-
ing Vanprooyen after that first seizure, yet disregarded his
limiting her to working only 6 hours a day and gave “little”
weight to the medical source statement from Vanprooyen’s
personal physician, Dr. Jones, because she’d limited
Vanprooyen to “less than sedentary exertional work,” a re-
striction the administrative law judge called “excessive in
light of the medical evidence of record and her activities of
daily living.” The Appeals Council of the Social Security
Administration denied review of the administrative law
judge’s decision, which then was affirmed by the district
No. 16-3653 9
court thus precipitating this appeal to us. Vanprooyen points
to the administrative law judge’s flawed credibility assess-
ments of her and her fiancé and disregard for the opinions of
her treating physicians, and notes that in finding her not
credible the administrative law judge had overemphasized
her daily activities—and equating daily activities with an
ability to work can lead to reversal. See Bjornson v. Astrue,
671 F.3d 640, 647 (7th Cir. 2012).
Of particular significance, Vanprooyen points out that
the administrative law judge misunderstood the significance
of her employment before her onset date (that is, the date
several months after her fall down the stairs when her disa-
bility compelled her to quit work). The fact that she worked
before the onset date doesn’t negate the possibility that she
became disabled by the onset. Goins v. Colvin, 764 F.3d 677,
679 (7th Cir. 2014); Shauger v. Astrue, 675 F.3d 690, 697
(7th Cir. 2012). Between her fall in March 2010 and her onset
in October 2011 she worked only three days a week. Part-
time work is not good evidence of ability to engage in full-
time employment, especially as she was able to continue
working part-time only because some managers gave her
easier shifts and other preferential treatment. She also re-
ceived help from coworkers, took unscheduled breaks, and
wrote everything down without abbreviation—
accommodations that the administrative law judge men-
tioned only in passing and sometimes failed to mention at
all.
She is also correct that after recounting at some length
the favorable testimony of her fiancé, the administrative law
judge never explained why that testimony shouldn’t lead to
a favorable assessment of her credibility. It wasn’t logical for
10 No. 16-3653
the administrative law judge to discredit Vanprooyen while
dismissing without explanation a corroborating witness who
supported her contentions.
Vanprooyen further contends that the administrative law
judge improperly discounted the opinions of treating
sources in rejecting the views of her personal physician, neu-
rologist, and psychiatrist. We agree with Vanprooyen that
the administrative law gave no logical reason for discount-
ing the opinions of these doctors, such as Dr. Jones. A treat-
ing physician’s opinion trumps the conclusions of agency
consultants—in particular those who never examined the
claimant—unless the limitations articulated by the treating
physician are not supported by the record. See Engstrand v.
Colvin, 788 F.3d 655, 662 (7th Cir. 2015). While it’s true that
Dr. Jones had seen Vanprooyen only once or twice a year
since 2005, neither of the agency’s consulting physicians had
ever examined her. The administrative law judge also reject-
ed Dr. Jones’s opinion because it rested mainly on
Vanprooyen’s reports of pain. That, too, was error, because
Dr. Jones’s medical-source statement concerned only
Vanprooyen’s fibromyalgia, which cannot be measured with
objective tests aside from a trigger-point assessment. And
that assessment showed that Vanprooyen was “[d]iffusely
tender at 18/18 points and multiple control points.”
See Sarchet v. Chater, 78 F.3d 305, 306–07 (7th Cir. 1996) (dis-
cussing challenge of diagnosing fibromyalgia and unavaila-
bility of objective tests); Suleman Bhana, “Fibromyalgia,”
American College of Rheumatology (March 2017),
www.rheumatology.org/I-Am-A/Patient-Caregiver/
Diseases-Conditions/Fibromyalgia (noting that causes of fi-
bromyalgia are unclear and diagnostic tools lacking). An
“ALJ may not discredit a claimant’s testimony about her
No. 16-3653 11
pain and limitations solely because there is no objective
medical evidence supporting it.” Villano v. Astrue, 556 F.3d
558, 562 (7th Cir. 2009); Carradine v. Barnhart, 360 F.3d 751,
754 (7th Cir. 2004) (“Pain is always subjective in the sense of
being experienced in the brain.”).
The administrative law judge also gave little weight to
the psychiatrist who opined that Vanprooyen has “fair or
poor mental abilities.” The administrative law judge de-
clared that opinion inconsistent with other medical evidence,
including “treatment records that generally indicate that the
claimant’s mental status examination findings were normal
and she reported improvement with medications.” Wrong;
the treatment records do not indicate a finding of “normal”
mental status. The only mention of “normal” in the psychia-
trist’s progress notes says that Vanprooyen’s motor skills
were “within normal limits.” The administrative law judge
disregarded all the psychiatrist’s other notes, covering a pe-
riod of six months, reporting that Vanprooyen had only fair
judgment and insight and that her mood was okay at times
but anxious and distraught at others. The administrative law
judge also disregarded Dr. Alexander’s three years of psy-
chiatric treatment without even mentioning him in the deci-
sion. And while Vanprooyen did report some improvement
with medication, there were times when her medication did
not improve her symptoms and she had to change medica-
tions and doses.
Notably the administrative law judge failed to mention
that a state consultative examiner who had given
Vanprooyen a mental-status examination concluded that she
was unable to manage her own money because of her “emo-
tional adjustment and medical difficulties.” This omission
12 No. 16-3653
was especially serious because at least two of the three jobs
that the administrative law judge found that Vanprooyen
could do—cashier and counter clerk—involve handling
money. Instead, without any logical explanation, the admin-
istrative law judge gave substantial weight to the opinions of
consulting physicians who had never examined
Vanprooyen, saying only that they had provided “a good
synopsis of the evidence” and that “their opinions are con-
sistent with the overall record.” “An ALJ can reject an exam-
ining physician’s opinion only for reasons supported by
substantial evidence in the record; a contradictory opinion of
a non-examining physician does not, by itself, suffice.”
Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003).
Because of the serious deficiencies in the administrative
law judge’s analysis, we reverse the decision of the district
court and remand the case to the Social Security Administra-
tion for further proceedings consistent with this opinion.
REVERSED AND REMANDED.