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Conner v. Commissioner of Social Security

September 22, 2009

JUDITH CONNER, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY DEFENDANT.



The opinion of the court was delivered by: Joy Flowers Conti United States District Judge

MEMORANDUM OPINION

CONTI, District Judge

Introduction

This is an appeal from the final decision of the Commissioner of Social Security ("Commissioner or "defendant") denying the claim of Judith Conner ("plaintiff") for supplemental security income ("SSI") benefits under Title XVI of the Social Security Act ("SSA"), 42 U.S.C. §§ 1381-83f. Plaintiff contends that the decision of the administrative law judge (the "ALJ") that she is not disabled, and therefore not entitled to benefits, should be reversed or at least remanded for reconsideration 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 and defendant's motions for summary judgment and the case will be remanded for further proceedings consistent with this opinion.

Procedural History

Plaintiff filed the application at issue in this appeal on a protective basis on March 23, 2005, asserting a disability since March 23, 2005 due to hepatitis C*fn1 , emphysema*fn2 and Ménière's disease*fn3.

(R. at 62-63, 85, 108.) On November 3, 2005, plaintiff's claim was initially denied. (R. at 38-42.) A timely written request for a hearing before the ALJ was filed by plaintiff, and the hearing was scheduled for June 21, 2007. (R. at 22-27.) Plaintiff appeared with counsel and testified at the hearing before the ALJ. (R. at 622-56.) A vocational expert (the "VE") also testified. (R. at 645-55.) In a decision dated August 10, 2007, the ALJ determined that plaintiff was not under a disability within the meaning of the SSA. (R. at 15-20.) The ALJ determined plaintiff had severe impairments; however, plaintiff had the residual functional capacity ("RFC") to perform unskilled sedentary work. (R. at 18-19.) Plaintiff filed a request to review the ALJ's decision, which was denied by the Appeals Council on June 28, 2008, (R. at 4-9.) Plaintiff timely filed this present action seeking judicial review.

Plaintiff's Background, Medical Evidence and Testimony Background

At the time of the hearing before the ALJ, plaintiff was forty-five years old. (R. at 627.) She completed high school and approximately one year of college, where she studied speech pathology and audiology. (Id.) Plaintiff was single and received child support from a former spouse. (R. at 628.) She had five children with three remaining at home. (Id.) Plaintiff received medical assistance and food stamps. (Id.) She last worked part time for a couple of months as a cook waitress and cleaner. (R. at 628-29.) Plaintiff reported that she stopped this employment because she called off a lot due to her inability to do the work and her employer needed someone more dependable. (R. at 629.) Previously, plaintiff worked part time for one month as a waitress and counter clerk. (Id.) She reported that she stopped this employment due to hospitalization after about a week and her employer needed someone more dependable. Plaintiff worked at Clarion College in food service and prep for four years. (R. at 629-30.) She left this employment in May 2005, on medical leave due to frequent sickness, hospitalization and dealing with the death of her sister. (R.. at 630-31.) In the ten-year period before 2001 plaintiff stayed at home with her children and did not work outside of the home. (R. at 631.)

Medical History

Dr. Ronald Cramer

Plaintiff was first seen by Ronald P. Cramer, D.O., on April 12, 2001, due to feeling increasing fatigue. (R. at 267.) Dr. Cramer noted that plaintiff was suspected of having hepatitis C and had a history of IV drug use and alcohol abuse occurring around 1977. (Id.) Plaintiff stated complaints of occasional heartburn and asthma. (Id.) Dr. Cramer noted that plaintiff reported she was quite depressed and his concern that she should have her depression aggressively treated if he considered her a candidate for interferon*fn4 treatment for hepatitis C. (R. at 268.) On May 10, 2001, Dr. Cramer noted that plaintiff was positive for hepatitis C. (R. at 264.) On February 5, 2002, plaintiff complained that she was having problems with fatigue, but she felt better when she got extra sleep. (R. at 253.) On March 5, 2002, Dr. Cramer noted that plaintiff was doing well and his only concern was the amount of Xanax*fn5 she was taking and he recommended that she take less. (R. at 252.) On March 12, 2002, plaintiff stated that she felt dizzy and fatigued and Dr. Cramer noted that she had an unsteady walk. (R. at 248.)

On April 2, 2002 Dr. Cramer reported that plaintiff presented with bilateral wheezing, coughing, and joint aches. (R. at 247.) Dr. Cramer noted that plaintiff's biopsy demonstrated essentially no fibrosis despite many years of hepatitis C and alcohol ingestion making it extremely unlikely that she will progress to cirrhosis. Dr. Cramer concluded that plaintiff did not need Interferon therapy. (Id.) On February 4, 2003, Dr. Cramer noted that plaintiff had a recurrence of her hepatitis C and noted that her primary problem was fatigue. (R. at 244.) Plaintiff was seen by Dr. Cramer on December 2, 2003, for complaints of nausea and epigastric discomfort. (R. at 242.) Dr. Cramer noted that plaintiff has a history of Barrett's esophagus*fn6 , hepatitis C that failed Interferon Rebetol*fn7 therapy for depression and malaise and episodes of pneumonia. (Id.) Dr. Cramer scheduled plaintiff for an endoscopy. (Id.)

Dr. Cramer reported on November 8, 2006, that plaintiff was admitted to the emergency room after having a piece of meat lodged in her throat. (R. at 578.) Dr. Cramer noted that plaintiff continued to have solid food dysphagia*fn8 . (Id.) On November 20, 2006, plaintiff underwent a upper endoscopy which revealed a stricture formation of the distal esophagus associated with ulceration and hiatal hernia. (R. at 468.)

Dr. Catherine Cunningham

Plaintiff was admitted on September 13, 2003, to Clarion Hospital due to shortness of breath and productive cough as well as shortness of breath on exertion. (R. at 123.) A chest x-ray was negative, other than chronic obstructive pulmonary disease (COPD)*fn9 . (Id.) Catherine Cunningham, D.O., diagnosed plaintiff with bronchitis, COPD, and hepatitis C. (Id.) On April 13, 2004, plaintiff complained to Dr. Cunningham of being very tired. (R. at 146.) On September 18, 2004, Dr. Cunningham reported that plaintiff had a lower respiratory infection. (R. at 135.) A chest x-ray indicated that plaintiff had COPD, although there was no signs of cardiopulmonary variation. (R. at 136.) On December 20, 2004, plaintiff saw Dr. Cunningham and complained about pain in her shoulder and arm extending to her hip. (R. at 131.) Dr. Cunningham diagnosed plaintiff with asthma, depression, anxiety and reflux. (R. at 132.)

On February 24, 2005, plaintiff was discharged from Clarion Hospital under Dr. Cunningham's care. (R. at 425.) Dr. Cunningham reported that plaintiff was complaining of shortness of breath and dizziness for two weeks and had cold and flu like symptoms. (Id.) Plaintiff also complained of having vertigo with left ear congestion. (Id.) Plaintiff was prescribed Rocephin*fn10 , Zithromax*fn11 , Tamiflu and nebulizer treatments of Xopenex*fn12 . (Id.)

On July 25, 2005, Dr Cunningham filled out a medical source statement of plaintiff's work-related abilities. (R. at 281-82.) Dr. Cunningham checked boxes indicating that plaintiff could not lift and carry more than ten pounds due to back pain, could not stand and walk more than one hour due to poor respiratory function, was unable to sit for long periods, was unable to handle food due to her hepatitis C and had environmental restrictions due to her exacerbated asthma. (Id.)

Dr. Cunningham filled out a function capacity evaluation form on July 18, 2006. (R. at 129-30.) Dr. Cunningham assessed plaintiff to be able only occasionally to lift and carry up to twenty-five to thirty-four pounds, stand for six hours with rest, walk for three hours with rest and totally to avoid exposure to dust, fumes and gases. (Id.) Dr. Cunningham stated that this was due to plaintiff's hepatitis C and severe asthma that cause significant fatigue. (Id.) Dr. Cunningham opined that plaintiff could not return to her former job, although she could work part time for four hours per day. (R. at 130.)

On July 17, 2007, Dr. Cunningham filled out a residual functional capacity questionnaire.

(R. at 605-13.) In the questionnaire Dr. Cunningham noted that plaintiff had shortness of breath, chest tightness, wheezing, episodic acute asthma, episodic acute bronchitis, episodic pneumonia, fatigue and coughing. (Id.) Dr. Cunningham marked that plaintiff's symptoms would frequently interfere where her ability to perform simple work tasks. (R. at 606.) Dr. Cunningham marked that plaintiff could sit for four hours and stand or walk for two hours. (Id.) Dr. Cunningham noted that plaintiff would only rarely need to take unscheduled breaks during an eight-hour work shift. (Id.) It was marked that plaintiff would need to avoid from moderate to all exposure of environmental irritants. (R. at 606-08.) Dr. Cunningham noted that plaintiff has Ménière's disease and had attacks of balance disturbance, tinnitus and progressive hearing loss, although she never treated plaintiff for Ménière's disease. (R. at 611.)

Emergency Room Visits

On May 24, 2005, plaintiff presented to Clarion Hospital emergency room for complaints of myalgias*fn13 , a cough with chills and a low grade fever. (R. at 379.) Ronni Needhan, D.O., reported that plaintiff's chest x-ray displayed COPD with no acute changes. (Id.) Plaintiff was admitted and treated with doxycycline*fn14 and discharged in stable condition on May 26, 2005. (Id.) On January 31, 2006, plaintiff was admitted to Clarion Hospital emergency room under the care of Dr. Cunningham for shortness of breath and coughing spells where she could not catch her breath. (R. at 494.) Plaintiff was treated with intravenous ...


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