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Nichols v. Astrue

January 21, 2010

BRAD A. NICHOLS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Nora Barry Fischer, District Judge

MEMORANDUM OPINION AND ORDER OF COURT

I. INTRODUCTION

Plaintiff Brad A. Nichols ("Plaintiff") brings this action pursuant to 42 U.S.C. §405(g) and §1383(c)(3) , seeking review of the final determination of the Commissioner of Social Security ("Commissioner") denying Plaintiff's application for supplemental security income ("SSI") under Title XVI of the Social Security Act. The parties have filed cross motions for summary judgment pursuant to Federal Rule of Civil Procedure 56, and the record has been developed at the administrative level. For the following reasons, the decision of the ALJ is supported by substantial evidence and Plaintiff's motion (Doc. No. 10) will be denied.

II. PROCEDURAL HISTORY

Plaintiff protectively filed his application for SSI on July 25, 2005, alleging disability since January 1, 1995 due to Crohn's disease, allergies, asthma, irritable bowel syndrome, hyperthyroidism, and depression. (R. 61, 64). Plaintiff's claim was denied at the initial level on December 15, 2005. (R. 36-40). He requested a hearing before an Administrative Law Judge ("ALJ") on February 12, 2006. (R. 41). A hearing was held on August 10, 2007. (R. 430-454).

Plaintiff, who was represented by counsel, appeared and testified at the hearing. Id. George Starosta, a vocational expert, also testified. (R. 449-452). On November 5, 2007, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Act. (R. 11-28). The Appeals Council subsequently denied Plaintiff's request for review, thereby making the ALJ's decision of the Commissioner in this case. (R. 4-6). Plaintiff now seeks review of that decision by this court.

III. STANDARD OF REVIEW

This Court's review is limited to determining whether the Commissioner's decision is supported by substantial evidence. 42 U.S.C. § 405(g); Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994). The Court may not undertake a de novo review of the Commissioner's decision or re-weigh the evidence of record. Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). Congress has clearly expressed its intention that "[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. §405(g). Substantial evidence "does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 522, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). As long as the Commissioner's decision is supported by substantial evidence, it cannot be set aside, even if this court "would have decided the factual inquiry differently."Haranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). "Overall, the substantial evidence standard is a deferential standard of review." Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004).

In order to establish a disability under the Act, a claimant must demonstrate a "medically determinable basis for an impairment that prevents [her] from engaging in any 'substantial gainful activity' for a statutory twelve-month period." Stunkard v. Sec'y of Health and Human Servs.,841 F.2d 57, 59 (3d Cir. 1988); 42 U.S.C. §423 (d)(1). A claimant is considered unable to engage in substantial gainful activity "only if [her] physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423 (d)(2)(A).

An ALJ must do more than simply state factual conclusions to support his ultimate findings. Baerga v. Richardson, 500 F.2d 309, 312-13 (3d Cir. 1974). The ALJ must make specific findings of fact. Stewart v. Secretary of HEW, 714 F.2d 287, 290 (3d Cir. 1983). Moreover, the ALJ must consider all medical evidence contained in the record and provide adequate explanations for disregarding or rejecting evidence. Weir on Behalf of Weir v. Heckler, 734 F.2d 955, 961 (3d Cir. 1984); Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981).

The Social Security Administration ("SSA"), acting pursuant to its rule making authority under 42 U.S.C. §405(a), has promulgated a five-step sequential evaluation process to determine whether a claimant is "disabled" within the meaning of the Act. The United States Supreme Court summarized this process as follows:

If at any step a finding of disability or non-disability can be made, the SSA will not review the claim further. At the first step, the agency will find non-disability unless the claimant shows that he is not working at a "substantial gainful activity." [20 C.F.R.] §§ 404.1520 (b), 416.920 (b). At step two, the SSA will find non-disability unless the claimant shows that he has a "severe impairment," defined as "any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities." [20 C.F.R.] §§ 404.1520(c), 415.920(c). At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies. [20 C.F.R.] §§ 404.1520(d), 416.920(d). If the claimant's impairment is not on the list, the inquiry proceeds to step four, at which the SSA assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled. If the claimant survives the fourth stage, the fifth, and final, step requires the SSA to consider so-called "vocational factors" (the claimant's age, education, and past work experience), and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. [20 C.F.R. §§ 404.1520(f), 404.1560(c), 416.920(f), 416.960(c).

Barnhart v. Thomas, 540 U.S. 20, 24-5, 124 S.Ct. 176, 157 L.Ed. 2d 333 (2003)(footnotes omitted.)

If the claimant is determined to be unable to resume previous employment, the burden shifts to the Commissioner (Step 5) to prove that, given plaintiff's mental or physical limitations, age, education, and work experience, he or she is able to perform substantial gainful activity in jobs available in the national economy. Campbell, 461 U.S. at 461; Stunkard, 842 F.2d at 59; Kangas, 823 F.2d 775, 777 (3d Cir. 1987); Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986).

IV. FACTS

A. General Background

Plaintiff was born on September 8, 1984, making him twenty-three years of age at the time of the ALJ's decision. (R. 20, 35). A twenty-three year old is considered a "younger person" under 20 C.F.R. § 416.920(c). Plaintiff graduated from high school in a special education program and is able to communicate in English. (R. 27, 433). Plaintiff had previously been employed as a pantry helper for four months. (R. 434). Plaintiff avers January 1, 1995 as the onset of his disability. (R. 61).

B. Medical Background

Plaintiff claims to be disabled due to a number of gastrointestinal, respiratory, thyroid, and mental impairments. Plaintiff's first relevant medical record was a sinus series taken November 15, 2000 indicating frontal and maxillary sinusitis. (R. 307). Plaintiff repeatedly underwent treatment for chronic sinusitis and asthma by his primary care physician, Dr. Andrew Fackler of Renaissance Family Practice ("RFP"), from November 2000 to at least March 2007. (R. 307, 399).*fn1 Symptoms of the ailments included chills, aches, congestion, shortness of breath and intermittent fever. (R. 305). As treatment for sinusitis, Dr. Fackler generally prescribed antibiotics. (R. 420). Plaintiff also occasionally suffered from allergic rhinitis due to multiple allergies. (R. 295, 296, 302-303, 410). On February 5, 2001, Dr. Richard Green, an allergist, noted that Plaintiff suffered from perennial allergic rhinitis and rhinosinusitis, stinging insect hypersensitivity, food allergy, and drug allergy. (R. 302). Plaintiff received allergy shots for eleven years, but they were discontinued when they failed to provide relief. (R. 277, 284).

Beginning in January 2001, Plaintiff treated with Dr. Ram Chandra and Dr. Anand Ponnambalam, both pediatric gastroenterologists. (R. 208-209). Dr. Chandra reviewed Plaintiff's colonoscopy and EGD report from the previous October and noted that they were normal. (R. 208). Several food intolerances and allergies were noted. Plaintiff reported that he was having zero to one bowel movement a day that could be a little looser and occasionally had some constipation. He further reported some memory loss and intermittent headaches and lightheadedness. Id. His physical examination was normal and all systems were within normal limits. (R. 209). Dr. Chandra suggested that Plaintiff consult a neurologist for his memory loss. He also reported that Plaintiff's sinusitis was persisting and gave him medication and noted that the remainder of the problems were "mainly due to chronic irritable bowel, some anxiety, reflux, or possible lactose intolerance." Id.

At his next visit with Dr. Chandra, Plaintiff's blood work was reviewed and noted as within normal limits. (R. 206). His general physical examination was normal. Diagnoses were noted as chronic irritable bowel syndrome, depression and anxiety, gastroesophageal reflux, and inflammatory bowel disease. The inflammatory bowel syndrome was noted as a "very mild case." (R. 207). An upper GI/small bowel series was ordered. Id. Plaintiff was seen again in April 2001 with notations that he was "able to go to school and function normally." (R. 204). The previously ordered upper GI as well as a white blood cell scan were within normal limits. Plaintiff physical examination was normal. Id. Further blood work was ordered and he was continued on his medications. (R. 205).

On May 15, 2001, Plaintiff had an initial consultation with Dr. Benjamin Smolar, a neurologist, for what he reported as daily headaches and memory loss. (R. 95-95). Mental status testing was grossly unremarkable and a motor examination revealed no significant focal weakness. Id. An MRI of the brain and thoracic spine and an EEG were ordered, however, because the neurological examination was not completely normal and indicated increased sensation in a possible T4-5 sensory level. (R. 95). Upon follow-up examination, Dr. Smolar noted that Plaintiff was stable neurologically with a normal MRI of the brain and thoracic spine and unremarkable EEG. Smolar suggested that Plaintiff's existing headache medication be tapered and replaced with something different. (R. 91).

On May 17, 2001, Plaintiff's primary care physician at the Renaissance Family Practice noted a new onset of hypothyroidism. (R. 294). A report was made by the primary care physician to Plaintiff's school in August 2001 indicating that Plaintiff's medical history included seizures and convulsions, allergies, mononucleosis, irritable bowel syndrome, history of Crohn's disease, hypothyroidism, and sinusitis. (R. 286-288). Several records indicated that Plaintiff was complaining of diarrhea starting in May 2001. (R. 281, 286-287, 296). In September, his medications were listed as Pentasa (irritable bowel syndrome), Prilosec (acid reflux), Celexa (depression), Levsin (irritable bowel syndrome), Augmentin (sinusitis), Levoxyl (hypothyroidism), and Claritin (allergies). A urethral stent was placed in October 2001 due to a right mid-urethral stone (kidney stone), which was eventually passed and the stent removed. (R. 141,142, 279).

Plaintiff had a return visit with Dr. Chandra on June 18, 2001 at which time Plaintiff reported he continued to have some occasional diarrhea alternating with constipation. (R. 202-203). The physical examination was normal. Plaintiff's Levsin was increased to help with the diarrhea. Id. At his next visit on August 13, 2001, Dr. Chandra indicated Plaintiff's symptoms were under good control with normal bowel movements and no heartburn, chest pain, back pain, fever, chills, or other symptoms. (R. 200). In September 2001, Plaintiff reported two weeks of abdominal pain and diarrhea, reporting six to eight loose bowel movements per day. His general physical exam was normal. He was instructed to stop taking his Augmentin (for the treatment of his sinusitis) to alleviate loose stool symptoms. (R. 198). A stool culture and blood work was ordered. Id.

On October 12, 2001, Dr. Chandra had a phone conversation with Plaintiff's mother who indicated Plaintiff's repeated absences from school. (R. 196). The mother reported that an evaluation had been done at Children's Hospital where a RAST test was negative. According to the mother the hospital diagnosed Plaintiff with having lactose intolerance and potentially Crohn's disease. Dr. Chandra reiterated that he felt Plaintiff predominately had irritable bowel syndrome with hypothyroidism, mild inflammatory bowel disease, and aggravation of symptoms with sinus infections. Id. An endoscopic evaluation and colonoscopy were ordered.

(R. 197). Plaintiff's mother informed Dr. Chandra that she was having problems with Plaintiff's school believing that a phobia of school was causing Plaintiff's problems. Dr. Chandra suggested a psychiatric evaluation with an adolescent psychiatrist. Id. Plaintiff was seen by Dr. Chandra on October 29, 2001 for continuing complaints of "some gastrointestinal symptoms."

(R. 194-195). Dr. Chandra noted that Plaintiff reported seeing three separate psychologists in the past and taking trials of several different medications that seemed to increase his anxiety. The ordered endoscopy revealed "evidence of reflux esophagitis and gastritis." Biopsies were normal, disaccharidase analysis revealed normal enzyme activity, and the colonoscopy (which could not be completed due to poor preparation) showed "some mild microscopic colitis." Plaintiff's physical examination was normal and he was advised to try returning to school. (R. 195).

Plaintiff was placed back in a special education program in November 2001 due to significant absences from school (96 days total) and failing grades in his academic classes. (R. 101). He was initially referred by his parents due to chronic absenteeism from illness having missed a significant amount of school from 4th grade on with periods of homebound instruction.

(R. 113-114). Plaintiff's mother noted that he sometimes had thoughts of harming himself and others, but testing indicated that there was "not a great deal to be concerned about with Brad's emotional adjustment other than in the area of somatization." (R. 115, 120). The school administrators concluded that Plaintiff's Crohn's disease had impaired his functioning to a significant degree. (R. 122-123).

On November 20, 2001, Dr. Elias Hilal, an otolaryngologist, saw Plaintiff for complaints of chronic nasal congestion and rhinorrea with frequent blockage and headaches. (R. 277). Upon examination, Dr. Hilal noted a nasal septal deviation to the right with diffusely hyperemic nasal mucosa and mild erythema in the arytenoids. Examination of the mouth and pharynx was normal, an indirect laryngoscopy was normal, and an examination of the ears and neck was normal. Id. A CT scan of the sinuses was essentially clear. (R. 140). Upon follow-up examination, Dr. Hilal noted that Plaintiff's mucosa was slightly hyperemic with mild septal deviations to both sides. (R. 272). Examination of the mouth, pharynx, and nose was normal and no excessive drainage was noted. Id. Plaintiff returned to see Dr. Chandra on February 8, 2002 at which time Plaintiff's mother reported he was doing worse with increasing ...


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