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Nosse v. Astrue

September 17, 2009


The opinion of the court was delivered by: Conti, District Judge.


Pending before this court is an appeal from the final decision of the Commissioner of Social Security ("Commissioner" or "defendant") denying the claims of Dayne Q. Nosse ("plaintiff") for supplemental security income ("SSI") under Title XVI of the Social Security Act ("SSA"), 42 U.S.C. §§ 1381-83, and disability insurance benefits ("DIB") under Title II of the SSA, 42 U.S.C. §§ 401-33. Plaintiff asserts that the decision of the administrative law judge (the "ALJ") should be reversed because the decision is not supported by substantial evidence. Defendant asserts that the decision of the ALJ is supported by substantial evidence. The parties filed cross-motions for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. The court will deny plaintiff's motion and defendant's motion, and will remand the case for further proceedings consistent with this opinion.


Procedural History

Plaintiff originally applied for benefits on February 24, 2000, on the basis of depression, panic attacks, migraines, pylonephritis, kidney stones, low back pain, and endometriosis.*fn1 (R. at 28, 50-52.) On August 29, 2000, plaintiff's claim was denied. (R. at 28-32.) Plaintiff did not appeal this denial.*fn2 On December 5, 2003,*fn3 plaintiff filed a second application for DIB and SSI.

(R. at 54-56, 897-99.) These claims were denied on April 21, 2004. (R. at 12, 33-37, 901-05.) On June 18, 2004, plaintiff filed a timely request for a hearing. (R. at 12, 38.) The hearing began on November 9, 2005, but the ALJ postponed it until March 20, 2006, to allow plaintiff's attorney an opportunity to submit a statement detailing any additional work performed during the period in which plaintiff alleges disability. (R. at 12.) Plaintiff's attorney did not submit an additional statement. (Id.) On June 28, 2006, the ALJ issued a decision finding that plaintiff was not disabled and could perform past work. (R. at 17.) Plaintiff requested a review of the ALJ's decision by the Appeals Council on August 31, 2006, which was denied on June 20, 2008. (R. 6-9.) Plaintiff timely filed the instant lawsuit requesting judicial review.

Plaintiff's Background, Medical History and Mental Health History

A. Background

Plaintiff was born on January 4, 1973, and was thirty-three years old at the time the ALJ issued the unfavorable decision. (R. at 911.) Plaintiff attended college at West Virginia University for four years until 1999, but did not complete her bachelor's degree due to health problems. (R. at 70, 104, 309, 312, 912.)

Since plaintiff's alleged onset of disability on October 15, 1999, until her full hearing before the ALJ, plaintiff performed several jobs, mainly in the areas of retail and childcare. (R. at 60-61, 453, 500, 857, 863, 873, 914-17.) During 1999, plaintiff worked as a sales associate for Boscov's and American Eagle, as well as a bartender at RMC Holdings (the "Church"). (R. at 60-61, 153, 914, 916.) She worked the longest as a sales associate at the GAP, where she worked from 1991-1996 and 2000-2001. (R. at 58-60, 916.) In 2000 she worked at the GAP about thirty-five hours per week. (R. at 736.) From 2003-2004 plaintiff worked as a sales associate at Bon-Ton Stores. (R. at 61, 136, 916.) Between 2002 and 2005 she also occasionally performed federally unreported work, mainly consisting of babysitting. (R. at 453-57, 465, 490, 500, 504, 670, 835, 860, 867, 882-83, 915-16.) In July 2003 she worked as a nanny for three children for four to five days a week for nine hours a day. (R. at 453.) Between 2004 and 2005 she cared for her grandmother, who has Alzheimer's disease, and babysat for fifty to sixty-five hours per week.

(R. at 871, 878, 880-81.) On one occasion in late 1999, she was fired for missing work due to health reasons. (R. at 129, 312, 333.)

B. Medical History

1) Dr. Thuy Bui's Records

From October 1999 until October 2005, plaintiff's primary care provider was Thuy Bui, M.D. (R. at 288, 292, 834.) In October 1999, plaintiff's medical history included a kidney stone, asthma, migraines, peptic ulcer disease from nonsteroidal anti-inflammatory medications, irritable bowel syndrome, and endometriosis. (R. at 287-88.)

Throughout 2000, Dr. Bui saw plaintiff on fourteen occasions and diagnosed her with several different ailments. (R. at 724-60, 273-80.) She commonly diagnosed plaintiff with migraines and headaches, pyelonephritis, hypovolemia,*fn4 dysmenorrhea, urinary tract infections, and nausea with vomiting. (R. at 724-60, 273-80.) Plaintiff had an episode of bronchitis in October 2000. (R. at 733-35.) In 2000, the laboratory results confirmed some of the common diagnoses, including urinary tract infections, dsymenorrhea, and hypovolemia. (R. at 782-95.)

Plaintiff's primary diagnoses in 2001 included abdominal pain, migraines and headaches, nausea with vomiting, acute bronchitis, edema,*fn5 urinary tract infections, depression, and fever.

(R. at 685-723.) Other diagnoses included urinary frequency, insomnia, dermatitis, anxiety, and acute sinusitis. (R. at 685-87, 691-94, 698-700, 707-08, 716-18.)*fn6 In 2001, plaintiff had seven laboratory tests performed, which showed abnormal weight gain, urinary frequency, fever and abdominal pain, edema (twice), a urinary tract infection, and nausea with vomiting. (R. at 770-81.)

In 2002, plaintiff made eight visits to Dr. Bui's department,*fn7 with the common diagnoses being abdominal pain and constipation. (R. at 667-84.) She also experienced vomiting, noninfectious gastroenteritis, asthma, acute bronchitis, premenstrual tension, edema, benign hypertensive renal disease without renal failure, myalgia and myositis, endometriosis, dermatitis, and a foot infection.*fn8 (R. at 669-84.) The only laboratory test in 2002 supported a diagnosis of abdominal pain epigastric and vomiting. (R. at 767-69.)

Plaintiff visited Dr. Bui's department three times in 2003, with diagnoses of abdominal pain, infectious otitis externa, other atopic dermatitis, and opioid dependence-contin. (R. at 657-66.) In her last visit on October 7, 2003, Dr. Bui noted that plaintiff still had "intermittent headache but not severe." (R. at 657.) In 2003, the laboratory result gave an impression of abdominal pain. (R. at 764-66.)

Plaintiff visited Dr. Bui one time in 2004 and was diagnosed with neurasthenia and viral meningitis.*fn9 (R. at 654.) In his progress notes on the visit, Dr. Bui wrote that "overall she is doing pretty well." (Id.) Laboratory test results confirmed the diagnosis of viral meningitis. (R. at 761-63, 843-45.)

In 2005, plaintiff made three visits to Dr. Bui's office with diagnoses, inter alia, of acute sinusitis, myalgia and myositis, and migraines. (R. at 834-42.) Additional diagnoses were trachea/bronchus disease, history of tobacco use, and dermatitis. (R. at 837-42.) Dr. Bui commented that plaintiff's pain was under control, especially her migraine headache, and that plaintiff was no longer seeing a psychiatrist, but still was taking medication. (R. at 837.) In her last appointment with plaintiff on October 27, 2005, Dr. Bui wrote, "fibromyalgia*fn10 is probably her main issue. She is stable without deterioration in her physical condition for at least the past 3 years." (R. at 835.)

On November 9, 2005, Dr. Bui completed a physical capacity evaluation of plaintiff, which included information from an occupational therapy capacity evaluation performed on November 4, 2005. (R. at 885-92.) Dr. Bui cited fibromyalgia and chronic headache as plaintiff's present diagnoses, with the related symptoms of pain in plaintiff's elbow, back, head, and neck. (R. at 885.) In the occupational therapy capacity evaluation, Dr. Bui opined that plaintiff could perform work in the sedentary category on a part-time basis and progress to full-time. (R. at 889.)

2) Dr. Cheryl Bernstein's Records

Plaintiff testified that besides her primary care physician Dr. Bui, the other doctor she saw on a regular basis was her "pain care doctor," Cheryl Bernstein, M.D. (R. at 919.) The record contains the treatment record of Dr. Bernstein from August 2002 to October 2005, at the UPMC Pain Evaluation and Treatment Institute (the "Institute"). (R. at 476, 855.) The record contains the treatment records of Dawn A. Marcus, M.D., who had treated plaintiff at the Institute from November 16, 1999 to June 2002. (R. at 269, 484.) Plaintiff visited the Institute numerous times during the seven-year period from 1999 to 2005. (R. at 260-71, 446-651, 855-84.) Dr. Marcus and Dr. Bernstein treated plaintiff primarily for chronic daily headaches, nausea and vomiting, occasional migraines, fibromyalgia, endometriosis, insomnia, and pain in plaintiff's neck, shoulders, and lower back. (Id.) Prior to 2002, plaintiff also experienced anxiety and panic attacks. (Id.)

On several occasions after 2000, the physicians reported that plaintiff's headaches were well controlled. (R. at 560, 513, 453-54, 882.) On May 18, 2004, Dr. Bernstein wrote that plaintiff "says she is overall doing well," and later noted that plaintiff's [c]hronic daily headaches, fibromyalgia, migraine headaches, and endometriosis [are] all well controlled on her long-acting opiate medication.... Overall her functioning is improved and she has few side effects. She would like to return to school, which she attributes to functioning overall on this medication. She is working fairly long hours, though, and is able to handle the increased work load without any difficulty.

(R. at 882-83.) The number of plaintiff's visits to the Institute decreased over the years, with a significant decrease occurring between 2002 and 2003. (R. at 261-71, 447-651, 855-84.) On a scale of zero to ten, plaintiff's average pain during 2000 to 2001 was usually between a five and a seven, whereas during 2003 to 2005, plaintiff's average pain was between a four and a five. (R. at 447-66, 516-651, 855-84.) In the hearing before the ALJ, plaintiff testified that on a good day her average pain would be a four. (R. at 929.)

Dr. Marcus, starting in November 1999, originally treated plaintiff's headaches with Oxycontin. (R. at 261-71, 533-651.) In July 2001, Dr. Marcus switched the plaintiff from Oxycontin to MS Contin. (R. at 521-38, 707.) Dr. Marcus noted that plaintiff's medications were well tolerated and that plaintiff was compliant with the medications. (R. at 484-97, 509-11.) Plaintiff could function and work well on MS Contin, and that it did not have significant side effects.*fn11 (R. at 457, 463, 868.)

3) Dr. Dilip Kar's Records

On April 9, 2004, Dilip S. Kar, M.D., performed a residual functional capacity ("RFC") assessment. (R. at 800-08.) In this evaluation, Dr. Kar found that plaintiff could frequently lift and carry weights of twenty-five pounds; occasionally lift and carry weights of fifty pounds; stand and walk for six of eight hours in a workday, and sit for six of eight hours. (R. at 801.) Dr. Kar found no postural limitations, i.e., no limitations in climbing, stooping, kneeling, or crawling. (R. at 802.)

4) Hospital Treatment

Between November 1998 and January 2004, plaintiff was seen in a hospital almost thirty times. (R. at 159-64, 165-71, 173-75, 176-77, 185-93, 194-99, 200-06, 207-10, 211-14, 215-25, 226-30, 231-37, 238-43, 364-66, 367-71, 372-73, 374-77, 378-80, 381, 382-400, 402-13, 414-21, 422-26, 427-30, 431-34, 435-41, 442-45.) About twenty of the hospital visits were due to migraines, vomiting and nausea, kidney stones, and urinary tract infections. Half of the visits ...

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