Ashley Gerstner v. Nancy A. Berryhill

Ashley Gerstner challenges the

denial of her application for disability insurance benefits and

supplemental security income. An administrative law judge

found that she was severely impaired by anxiety, bipolar

disorder, panic disorder, depression, and fibromyalgia, and

that these impairments were not disabling. Gerstner contends

that the ALJ erred in assigning too little weight to her

treating psychiatrist’s opinions and in discrediting her com2

No. 16-4007

plaints of fibromyalgia pain. We vacate the judgment and

remand.

I.

Gerstner was 27 when she applied for disability benefits

and supplemental security income, alleging an onset date of

May 2011. Her mental impairments manifested during her

high school years. She was admitted to a psychiatric hospital

at 15 and has been treated with psychiatric and counseling

services. Because of anxiety, she was home schooled; she later

transferred to a high school where she received her degree

by learning mostly on a computer by herself. She then

worked as an assistant manager at Blockbuster for five years

but quit abruptly after experiencing what she described as a

“mental breakdown.” She moved on to work at another retail

store in a managerial position that required fewer skills

than her previous job, but quit after six months because she

experienced another breakdown. Since May 2011, Gerstner

has remained unemployed.

Between mid-2011 and mid-2012, Gerstner was treated

six times by Dr. Stephen Callaghan, M.D., a psychiatrist at

Psychiatric Treatment Services of Racine. In those visits,

Dr. Callaghan, who had treated Gerstner since 2006, diagnosed

her with generalized anxiety disorder, depression,

and attention deficit disorder. He prescribed Xanax and other

medications, and he frequently adjusted the dosages. But

Dr. Callaghan also noted that Gerstner appeared euthymic

(non-depressed) with normal affect.

In connection with Gerstner’s application for benefits,

Dr. Callaghan completed a form assessment of Gerstner’s

mental health in mid-2012 and opined that she was extremeNo.

16-4007 3

ly limited socially and at work. He noted that since 2010

Gerstner’s mental health had deteriorated, and he estimated

that on average she could work only two to three hours per

day and likely would miss work seven days per month. In

response to a series of questions about “social adjustments,”

he checked boxes indicating that she had marked-to-extreme

limitations behaving in an emotionally stable manner, relating

predictably in social situations, and demonstrating reliability.

He supported this assessment with findings that she

periodically felt suicidal and homicidal, had major problems

with social relations, and would withdraw from stressful

situations and not be able to function. On another part of the

form, in a section related to “occupational adjustments,” he

checked boxes reflecting that Gerstner had marked-toextreme

limitations in her ability to deal with work stresses

and moderate-to-marked limits in maintaining attention—

findings that he based on her severe anxiety, depression, and

problems “handling any stress without shut[ting] down.”

Lastly, in response to a series of questions about “performance

adjustments,” he assessed Gerstner as markedly limited

in her ability to understand and carry out detailed job

instructions because she would be overwhelmed by anxiety

and depression.

After this assessment, Dr. Callaghan treated Gerstner

seven more times (all within a year), added diagnoses of bipolar

disorder and panic disorder with agoraphobia, prescribed

medications to treat both, and noted that she had a

dysthymic mood (depressed) each visit. On one occasion

Dr. Callaghan noted that she had ideas of suicide and homicide.

But in subsequent exams, he noted that she no longer

had these thoughts and described her affect as normal.

4 No. 16-4007

Dr. David Nichols, Ph.D., a psychologist who practiced

with Dr. Callaghan, met with Gerstner monthly (sometimes

more frequently) for hour-long visits. Dr. Nichols diagnosed

her in 2011 with major depressive and generalized anxiety

disorders, and in 2013 with bipolar disorder. Gerstner, after

filing her disability application, told Dr. Nichols that she

continued to look for a factory job.

Gerstner was treated in 2013 by a nurse practitioner,

Nancy Maczka, who assessed her mental health on a form

identical to the one completed by Dr. Callaghan. She echoed

Dr. Callaghan’s findings that Gerstner had extreme limitations

with relating “predictably in social situations” and

“demonstrat[ing] reliability.” But unlike Dr. Callaghan, she

found Gerstner more limited in dealing with work stresses

and maintaining attention.

In addition to her mental impairment, Gerstner says that

she was prevented from working by fibromyalgia. She first

complained of pain and weakness to Dr. Joseph Paukner,

M.D., in September 2011, and he referred her to a neurologist,

Dr. Bhupendra Khatri, M.D., of the Center for Neurological

Disorders in Milwaukee. Dr. Khatri examined Gerstner

in November 2011, concluded that she was “most likely”

suffering from fibromyalgia, and repeated this diagnosis at a

follow-up appointment in early January 2012 following an

MRI of Gerstner’s brain. (The MRI ruled out any neurological

change that might have accounted for her complaints of

worsening pain). Soon thereafter, Dr. Tracy Brenner, M.D., a

physician at the Milwaukee Rheumatology Center, found

that Gerstner had fourteen of eighteen positive tender

points, a finding that led the doctor to opine that Gerstner

had a “high suspicion for fibromyalgia.” Dr. Brenner deNo.

16-4007 5

ferred management of that condition to Dr. Paukner and Dr.

Callaghan. Dr. Paukner then diagnosed Gerstner with fibromyalgia,

for which he prescribed Lyrica, a pain reliever.

The next month, in response to Gerstner’s complaints of having

good and bad days, Dr. Paukner increased the dosage.

At an appointment later that year, Gerstner rated her pain

from fibromyalgia as a nine out of ten, and was prescribed

a stronger pain medication—methadone.

In June 2012, the month before Dr. Callaghan completed

his assessment, a state-agency consultant, Dr. Craig Childs,

Ph.D., concluded from a review of Gerstner’s medical records

that she was only moderately limited in several tasks:

completing a normal workday and workweek, maintaining

concentration for extended periods, carrying out detailed

instructions, and interacting with the general public.

Gerstner lost her health insurance in 2013. She ceased

treatment with Dr. Callaghan and went six months without

medication for her fibromyalgia pain.

The Agency denied Gerstner’s application for disabilityinsurance

benefits and supplemental-security income, both

initially and on reconsideration.

At a hearing before an ALJ in 2014, Gerstner described

how her health had deteriorated since 2010. She testified that

she had moved back into her parents’ house and experienced

trouble interacting with others, handling stress and

pressure, sleeping, and concentrating. She added that she

had difficulty making phone calls and leaving her house.

She said she usually took Xanax twice daily for her anxiety,

and she experienced shooting pain from her fibromyalgia

that was aggravated by stress, prolonged sitting and stand6

No. 16-4007

ing, and exercise. Her flare-ups lasted from one to three

hours. She worried that working would exacerbate her pain

the next day. Since her fibromyalgia diagnosis, she had

gained one hundred pounds.

The ALJ applied the standard 5-step analysis,

see 20 C.F.R. §§ 404.1520(a), 416.920(a), and concluded that

Gerstner was not disabled. The ALJ determined that she had

not engaged in substantial gainful activity since her alleged

onset date (step one); that her conditions—fibromyalgia, depressive

disorder, anxiety disorder, bipolar disorder, and

panic disorder—were severe impairments (step two); that

these impairments did not meet a listing for presumptive

disability, individually or in combination (step three); that

she had the residual functional capacity to perform light, unskilled

work limited to “simple, routine and repetitive

tasks,” no interaction with the public, and “only occasional

interaction with coworkers” (step four); and that although

she could not perform her past work, she could work as a

night cleaner, price marker, or call router, as a vocational expert

had concluded based on the ALJ’s assessment of Gerstner’s

residual functional capacity (step five).

In deciding Gerstner’s residual functional capacity, the

ALJ discounted her account of disabling limitations and her

treating psychiatrist’s opinions. The ALJ found that her

statements about the “intensity, persistence, and pace” of her

symptoms of mental illnesses and fibromyalgia were “not

entirely credible.” He also gave “little weight” to the mid-

2012 opinions of Dr. Callaghan because the limitations he

marked were “extreme” compared to Dr. Callaghan’s own

“findings and observations,” which the ALJ said were “relatively

normal mental status examinations” with a “few exNo.

16-4007 7

ceptions.” By contrast, the ALJ gave “great weight” to the

June 2012 opinion of the reviewing agency consultant, Dr.

Childs, who concluded that Gerstner had only moderate limitations.

The ALJ also purported to rely on “updated medical

evidence” to include “somewhat greater limitations” in

Gerstner’s residual functional capacity than what Dr. Childs

had opined.

After the Appeals Council denied review, a magistrate

judge presiding by consent, see 28 U.S.C. § 636(c), affirmed

the decision of the Commissioner.

II.

A. Treating Psychiatrist’s Opinions

On appeal, Gerstner challenges the ALJ’s decision to give

“little weight” to Dr. Callaghan’s opinions in his mid-2012

assessment of her mental health. A treating physician's opinion

on the nature and severity of a medical condition is entitled

to controlling weight if it is well supported by medical

findings and is consistent with other evidence in the record.

20 C.F.R. § 404.1527(c)(1); Brown v. Colvin, 845 F.3d 247, 252

(7th Cir. 2016). (This is the rule governing claims filed before

March 27, 2017, see 20 C.F.R. §§ 404.1520c(a) (2017).) The ALJ

declined to give Dr. Callaghan’s opinions controlling weight

because they were “extreme compared to his own findings

and observations. With a few exceptions, Dr. Callaghan noted

relatively normal mental status examinations.” Gerstner

argues that the ALJ cherry-picked Dr. Callaghan’s findings

about mood and affect and disregarded his diagnoses of depression,

anxiety, and other “abnormal findings.” She contends

also that he failed to consider the requisite factors for

8 No. 16-4007

evaluating medical source opinions set forth in the applicable

regulation.

We agree with Gerstner that the ALJ fixated on select

portions of Dr. Callaghan’s treatment notes and inadequately

analyzed his opinions. First, with regard to Dr. Callaghan’s

reports from six exams before August 2012, the ALJ

focused on notes about mood and affect but ignored Dr. Callaghan’s

diagnoses of depression and anxiety disorder. “An

ALJ may not selectively discuss portions of a physician's report

that support a finding of non-disability while ignoring

other portions that suggest a disability.” Campbell v. Astrue,

627 F.3d 299, 301 (7th Cir. 2010). Here, the ALJ did not specify

which of Dr. Callaghan’s findings were “normal,” but he

did say that Dr. Callaghan’s observations of Gerstner’s euthymic

mood and normal affect were inconsistent with her

“allegations” of “disabling affective disorders.” But

Dr. Callaghan made these observations in the same reports

before August 2012 in which he diagnosed her with depression

and anxiety, and yet the ALJ ignored these diagnoses.

Moreover, the affect and mood notes that the ALJ emphasized

simply described how Gerstner presented on the days of

her appointments. They were not general assessments.

Second, the ALJ concluded from Dr. Callaghan’s notes after

August 2012 that Gerstner’s mental health had improved,

disregarding other portions of those notes that undermine

his conclusion. After August 2012, Dr. Callaghan found during

each visit that Gerstner had a normal affect, no “impaired”

thoughts, and no suicidal ideations, but also that she

reported a dysthymic mood and experienced anxiety, depression,

and problems sleeping and concentrating. The ALJ

considered only the signs of possible improvements in these

No. 16-4007 9

notes and ignored the negative findings. But all findings in

psychiatric notes must be considered, even if they were

based on the patient’s own account of her mental symptoms,

see Price v. Colvin, 794 F.3d 836, 839–40 (7th Cir. 2015) (citing

Adaire v. Colvin, 778 F.3d 685, 688 (7th Cir. 2015)). Furthermore,

every treatment note after August 2012 repeats Dr.

Callaghan’s diagnoses and treatments; he even changed the

medication for Gerstner’s bipolar disorder in January 2013

and increased the dosage three months later. These unchanged

diagnoses and the medication adjustments belie the

conclusion that Gerstner’s mental health had improved.

Third, the ALJ ignored how Dr. Callaghan’s mid-2012

opinions of Gerstner’s limitations were supported by his repeated

findings of depression and dysthymic mood. Dr. Callaghan

opined that Gerstner was “extremely limited” with

regard to such matters as emotional stability, reliability, and

predictability. This opinion conformed to his diagnosis of

depression since July 2011 and his observations since August

2012 that Gerstner had a dysthymic mood; dysthymia (depression)

is a condition that may “significantly interfere”

with work and relationships, Persistent depressive disorder

(dysthymia), MAYO CLINIC,

http://www.mayoclinic.org/diseases-conditions/persistentdepressive-

disorder/home/ovc-20166590 (visited Nov. 27,

2017).

Fourth, the ALJ overlooked the extent to which

Dr. Callaghan’s opinions were consistent with the diagnoses

and opinions of other medical sources who treated Gerstner.

ALJs must consider psychologists’ and nurse practitioners’

opinions on the severity of a patient’s impairments.

See 42 U.S.C. § 423(d)(5)(B); 20 C.F.R. §§ 404.1502(a)(2),

10 No. 16-4007

404.1527(a)(1),(b),(c); SSR 06-03P, 2006 WL 2329939 (Aug. 9,

2006) (“[M]edical sources who are not ‘acceptable medical

sources,’ such as nurse practitioners  are important and

should be evaluated on key issues such as impairment severity

and functional effects.”); see also 20 C.F.R. § 402.35(b)(1)

(“Social Security Rulings  are binding on all components

of the Social Security Administration.”). The ALJ failed to

mention that Dr. Nichols diagnosed Gerstner with the same

disorders found by Dr. Callaghan. Nor did the ALJ note that

Dr. Callaghan’s opinion was supported by Dr. Nichols’s rating

of Gerstner’s Global Assessment of Functioning (GAF),

which measured her psychological, social, and occupational

abilities. See AMERICAN PSYCH. ASSOC., DIAGN. & STAT. MAN.

OF MENTAL DISORDERS 34 (4th Ed., Rev. 2000) (DSM-IV).

Gerstner’s GAF scores ranged from 40 to 55, indicating she

had serious difficulty (41 to 50) and moderate difficulty (51

to 60) in these abilities. Id.1 And a nurse practitioner,

Maczka, treated Gerstner and opined that her mental abilities

were limited to the same extent or more than that found

by Dr. Callaghan, but this supporting opinion, which the

ALJ wrongly discounted as coming from an unacceptable

medical source, went unmentioned in the ALJ’s analysis of

Dr. Callaghan’s opinions.

1 The DSM-V, the latest version of the Diagnostic and Statistical

Manual of Mental Disorders, has abandoned the GAF. AMERICAN PSYCH.

ASSOC., DIAGN. & STAT. MAN. OF MENTAL DISORDERS 16 (5th Ed., 2013)

(DSM-V). But the Social Security Administration still instructs ALJs to

treat GAF scores as medical-opinion evidence. See Craig v. Colvin, 659

F. App’x 381, 382 (9th Cir. 2016); Hughes v. Comm'r Soc. Sec., 643 F. App’x

116, 119 n.2 (3d Cir. 2016).

No. 16-4007 11

Fifth, even if there were sound reasons for refusing to

give Dr. Callaghan’s opinions controlling weight, the ALJ

still erred by assigning his opinions little weight without

considering relevant regulatory factors under 20 C.F.R.

§ 404.1527(c). ALJs must decide the weight of a treating physician’s

non-controlling opinion by considering, to the extent

applicable, the treatment relationship’s length, nature, and

extent; the opinion’s consistency with other evidence; the

explanatory support for the opinion; and any specialty of the

treating physician. 20 C.F.R. § 404.1527(c); Moss v. Astrue,

555 F.3d 556, 561 (7th Cir. 2009); Bauer v. Astrue, 532 F.3d 606,

608 (7th Cir. 2008). The ALJ here did not mention that

Dr. Callaghan is a psychiatrist, that he was the only psychiatrist

who treated Gerstner, that the treatments occurred regularly

for six years (sometimes monthly), or that Dr. Callaghan

assessed her mental health thirteen times in the two

years between the onset date and the date when she lost

medical insurance. The ALJ also failed to consider the consistency

of Dr. Callaghan’s opinion with the opinions of other

treating, examining, and reviewing medical sources. Although

the ALJ discussed the weight to afford these physicians’

opinions, he did not specify how or to what extent he

considered these opinions when deciding to assign little

weight to Dr. Callaghan’s opinions.

Because of these errors, substantial evidence does not

support the decision to afford little weight to Dr. Callaghan’s

opinions of Gerstner’s limitations from mental impairments,

and the case must be remanded for reconsideration of his

opinion, see Meuser v. Colvin, 838 F.3d 905, 912 (7th Cir.

2016); Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011).

12 No. 16-4007

B. Adverse Credibility Determination

Gerstner also contends that the ALJ wrongly discounted

her testimony about the extent of her pain from fibromyalgia.

The ALJ, using familiar boilerplate, said that the “claimant’s

statements concerning the intensity, persistence and

limiting effects of these symptoms are not entirely credible.”

Gerstner argues that the ALJ discredited her complaints of

intermittent fibromyalgia pain by overstating findings from

examining physicians’ diagnostic tests, in which she walked,

moved, sensed touch, and had no spasms or tenderness. She

argues further that the ALJ wrongly discredited her pain

complaints by misstating medical evidence from two examining

physicians who recommended that she engage in unspecified

physical activity. She contends also that the ALJ

drew an unwarranted inference that her pain was not disabling

because she went six months without fibromyalgia

drugs, but the ALJ never considered the reason she offered

for that medication gap. Lastly, Gerstner argues that the ALJ

wrongly concluded that she could work based on a physician’s

notation that she had searched for employment.

We agree with Gerstner that the ALJ’s adverse credibility

determination must be overturned. This court will overturn

an ALJ’s adverse credibility finding if it is patently wrong.

See Larson, 615 F.3d at 745; Schaaf v. Astrue, 602 F.3d 869, 875

(7th Cir. 2010). The ALJ here overstated test results and

treatment recommendations and drew unjustified inferences

from Gerstner’s medication gap and job search.

First, the ALJ overstated findings from three diagnostic

tests to discredit Gerstner’s complaints of intermittent fibromyalgia

pain. The ALJ said that Gerstner’s pain complaints

were inconsistent with her abilities to sit, move, and

No. 16-4007 13

walk for an unstated period in one exam, her normal sensation

in extremities during another exam, and her lack of

spasms and tenderness in a third exam. But these findings

are consistent with Gerstner’s pain complaints. She never

testified that she had constant disabling pain, or that her

condition totally impaired the abilities tested in these exams.

Instead, she said that her pain was triggered by prolonged sitting,

standing, or activity and stress. The ALJ’s analysis reveals

that he misunderstood the nature of her fibromyalgia

pain. The extent of fibromyalgia pain cannot be measured

with objective tests aside from a trigger-point assessment.

See Vanprooyen, 864 F.3d at 568; Fibromyalgia, Diagnosis,

MAYO CLINIC, http://www.mayoclinic.org/diseasesconditions/

fibromyalgia/diagnosis-treatment/diagnosis/dxc-

20317823 (visited Nov. 27, 2017). Trigger-point testing on

Gerstner pinpointed fibromyalgia as the source of her pain,

and her pain complaints were consistent with her prescription

for methadone, an opioid not intended for mild or acute

pain. Methadone Hydrochloride, PRSCBR’S. DIG. REFERENCE,

http://www.pdr.net/drug-summary/Methadone-

Hydrochloride-Intensol-Oral-Concentrate-methadonehydrochloride-

3464 (visited Dec. 22, 2017).

Second, the ALJ unjustifiably concluded that Gerstner’s

pain was not disabling because an examining physician recommended

that she engage in “aerobic activity several times

a week” and a physician’s assistant who treated her was

concerned about her “inadequate physical activity.” These

general recommendations of physical activity do not contradict

Gerstner’s alleged limits from fibromyalgia. Gerstner

testified that she could not do “exercise,” but she did not explain

what she considered exercise. Because the examining

physician and the physician’s assistant did not elaborate on

14 No. 16-4007

the type, duration, or intensity of the physical activity they

would recommend, these medical sources may have had in

mind activity that was within Gerstner’s alleged limits—for

instance walking a few times a week for a few minutes each

time. Furthermore, the examining physician said her recommendation

was only a “potential treatment,” probably

because she deferred treatment of Gerstner’s fibromyalgia to

other doctors who knew her limits. More importantly, the

record reflects that at the time of the hearing, Gerstner was

totally inactive, undermining any suggestion that she could

exercise beyond her alleged limits.

Third, the ALJ questionably concluded that Gerstner exaggerated

her pain because she was able to function without

taking fibromyalgia drugs for six months when she was uninsured.

Gerstner and her attorney explained at the hearing

that the reason for the 6-month hiatus in her pain treatment

was her loss of health insurance. The ALJ, however, failed to

consider her explanation before inferring that this gap

somehow proved that her pain was not as severe as alleged.

See Garcia v. Colvin, 741 F.3d 758, 761-62 (7th Cir. 2013); Craft

v. Astrue, 539 F.3d 668, 679 (7th Cir. 2008).

Lastly, the ALJ wrongly relied on psychiatric notes reflecting

that Gerstner had searched for a factory job to conclude

that she was able to work. The ALJ said this job search

“suggests that she did indeed retain the ability to perform

work-related activities,” and the Commissioner argued that

her job search undermines her complaints of disabling pain.

But the job search, on its own, is not evidence that she embellished

her pain, because a claimant who looks for work

after claiming a painful disability may have “a strong work

ethic or overly-optimistic outlook rather than an exaggerated

No. 16-4007 15

condition.” See Ghiselli v. Colvin, 837 F.3d 771, 778 (7th Cir.

2016); Hill v. Colvin, 807 F.3d 862, 868 (7th Cir. 2015).

The ALJ failed to substantiate and explain his decision to

grant Dr. Callaghan’s opinion little weight, and the ALJ’s

adverse credibility determination regarding Gerstner’s complaints

of fibromyalgia pain is patently wrong. We therefore

vacate the judgment affirming the denial of benefits and remand

for further proceedings.