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Whipkey v. Astrue

January 29, 2010


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


Plaintiff, Wendy Whipkey ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final determination of the Commissioner of Social Security ("Commissioner") denying Plaintiff's application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("SSA") 42 U.S.C. §§ 401-433, 1381-1383(f). This matter comes before the Court on cross-motions for summary judgment filed by the parties pursuant to Federal Rule of Civil Procedure 56 (Docket Nos. 7 and 10). For the following reasons, Plaintiff's Motion for Summary Judgment [7] is DENIED and the Commissioner's Motion [9] is GRANTED, and the decision of the Administrative Law Judge denying DIB and SSI is hereby AFFIRMED.

I. Procedural History

The procedural history of this case is complex given Plaintiff's multiple filings and subsequent denials. Plaintiff initially filed for DIB on May 4, 2001 alleging a disability due to residual effects from surgery for the bowel, bladder, and uterus with an onset date of October 24, 2000. (Docket No. 5 at 256-258; 252-254)(hereinafter "R. at ___"). Plaintiff's claims were initially denied by the Commissioner on August 20, 2001. (R. at 64). Thereafter, Plaintiff filed a timely request for a hearing before an Administrative Law Judge ("ALJ"). (R. at 483-92). A hearing was held before an ALJ on April 11, 2002. (R. at 64-113). Plaintiff appeared and testified, with the assistance of counsel. (Id.). On August 6, 2002, the ALJ issued a decision, denying Plaintiff's claims and concluding that Plaintiff was not disabled within the meaning of the Act. (R. at 491-92). Plaintiff filed a timely appeal of the ALJ's unfavorable determination, and the Appeals Council subsequently denied the Plaintiff's request to review the ALJ's decision on December 27, 2002. (R. at 493-495).

On January 2, 2003, Plaintiff filed a second application for DIB and a new concurrent application for SSI also alleging a disability onset date of October 24, 2000. (R. at 508-526). The Commissioner denied these claims on May 19, 2003. (R. at 497-500). Thereafter, Plaintiff filed a timely request for a hearing before an ALJ. (R. at 501). On December 8, 2003, a hearing was held before the same ALJ who had made the previous determination. (R. at 124-160). On February 2, 2004, the ALJ issued a decision again denying Plaintiff's claims and concluding that Plaintiff was not disabled within the meaning of the Act. (R. at 768-776). Plaintiff filed a timely appeal of the ALJ's decision, and on September 22, 2005, the Appeals Council reversed the ALJ's February 2, 2004 decision and remanded the claims for further proceedings. (R. at 777-780). The Appeals Council instructed the ALJ on remand to consider additional evidence concerning Plaintiff's residual functional capacity, provide a rationale with specific references in the record in support of the assessed limitations, and to explain the weight given to examining source opinions. (R. at 779). Finally, the Appeals Council instructed the ALJ to obtain evidence from a vocational expert to clarify the effect of the assessed limitations. (Id.).

While Plaintiff's request for review was pending with the Appeals Council, Plaintiff filed a third application for DIB and a new application for SSI on April 28, 2005, still alleging a disability onset of October 24, 2004, based on arthritis, irritable bowel syndrome, acid reflux, bladder problems, back and stomach pain, bowel problems, gastritis, headaches, and the effects of uterus surgery. (R. at 25, 800-839). These applications were denied initially on July 26, 2005, and Plaintiff subsequently made a timely request for hearing. (R. at 25). As a result of the Appeals Council's September 22, 2005 Order reversing and remanding the February 2, 2004 decision, these claims were rendered "duplicates" and were associated with Plaintiff's earlier claims. (R. at 779). A hearing was held before a new ALJ on July 6, 2006. (R. at 166-224). On January 25, 2007, the new ALJ issued a decision denying both applications for benefits, concluding for the third time that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 23-33). The Appeals Council declined to review the decision of the ALJ on May 29, 2009. (R. at 9-11). Having exhausted all of her administrative remedies, Plaintiff filed this action on July 22, 2009. (Docket No. 1). Plaintiff filed her Motion for Summary Judgment and Brief in Support on October 29, 2009 (Docket Nos. 7 and 8), and the Commissioner filed its Motion for Summary Judgment and Brief in Support on November 18, 2009 (Docket Nos. 9 and 10).

II. Factual Background

A. General Background

Plaintiff was born on May 29, 1973, making her 27 years old as of her alleged onset date, and she was 28, 30, and 34 respectively at the time of each of her hearings before an ALJ. (R. at 66, 116, 166). Plaintiff is 6'1" and weighs approximately 215 pounds. (R. at 170, 171). Plaintiff has completed high school and is a single mother who lives with her mother and her 10 year old son.

(R. at 171-174). Plaintiff's past relevant work*fn1 includes work as an assistant manager at a Family Dollar store, work at a brake shoe factory, sewing machine operator, and seasonal housekeeper at Seven Springs resort. (R. at 177-184).

B. Plaintiff's Medical Background

1. Plaintiff's Records from Magee Women's Hospital Regarding her Uterine Prolapse Surgery

Plaintiff's medical background since her initial surgery is also complex, involving numerous doctors, hospitals, emergency room visits, and procedures. Plaintiff's initial injury to her abdominal area occurred as she was unloading a truck while working at Family Dollar. (R. at 118, 180). As she was lifting a box, Plaintiff felt something "pop" in her stomach. (Id.). She reported the injury to her supervisor and sought medical treatment. (Id.). She saw Dr. Alison Swift, M.D. at Magee Women's Hospital ("Magee") in Pittsburgh, PA. Dr. Swift subsequently released her to work with a restriction of no lifting of any weight. (Id.). Plaintiff was diagnosed with uterine prolapse.*fn2 On October 24, 2000, Plaintiff was readmitted to Magee where she underwent surgery, specifically a bilateral paravaginal defect repair, McCall culdoplasty*fn3 , cystoscopy*fn4 with stent placement and removal, and posterior repair with perineorrhaphy.*fn5 (R. at 570-571). Plaintiff "tolerated the procedure well." (Id.). Plaintiff's post-operative diagnosis was severe pelvic relaxation, third-degree cystocele*fn6 , gaping introitus*fn7 and bilateral paravaginal defect repairs, greater on left than on right. (R. at 571). Plaintiff was prescribed Vicodin*fn8 for pain. Plaintiff returned to Magee Women's Hospital five times for post-operative check-ups with Dr. Swift on November 6, 2000, November 21, 2000, December 19, 2000, February 8, 2001 and June 5, 2001. (R. at 312-317). All follow up exams were normal and the incision was healing well. (Id.). Plaintiff complained of having difficulty urinating, noting she had to self-catheterize at least twice daily. (Id.).

2. Plaintiff's Records from Doctors Krafty, Alsaadi, and Reddi from July 18, 2001 through January 21, 2003

Plaintiff continued to complain of abdominal pain and underwent additional tests, including a pelvic ultrasound conducted by Dr. Swift on July 13, 2001. (R. at 337). The results of the ultrasound were normal but indicated that Plaintiff had possible polycystic ovaries. (Id.). In July of 2001, Plaintiff began to see Mary Beth Krafty, M.D. because Dr. Swift left for Washington. (R. at 95). On July 18, 2001, Plaintiff underwent an 2-D echocardiogram with Doppler. (R. at 729).

The findings of this test were "essentially normal." (Id.). Dr. Krafty examined Plaintiff again on August 21, 2001, and the findings of that examination were also within normal limits. (R. at 329, 760). Dr. Krafty considered Plaintiff's gallbladder as a possible source for her abdominal pain and ordered an ultrasound of Plaintiff's gallbladder on August 23, 2001. The ultrasound showed "an echogenic focus within the gallbladder lumen measuring 1.5 cm in greatest diameter consistent with a gallstone." (R. at 332).

Dr. Krafty referred Plaintiff to Dr. Khaldon Alsaadi, M.D., who examined Plaintiff on September 10, 2001 and determined that she had recurrent calculus cholecystitis*fn9 as documented on her gallbladder sonogram. (R. at 327). On September 24, 2001, Dr. Alsaadi performed a laproscopic cholycystectomy on Plaintiff. (R. at 326). During the procedure, Dr. Alsaadi also examined Plaintiff's abdomen and found the liver, stomach and large and small intestines to be "unremarkable." (Id.). Following the cholycystectomy, Dr. Alsaadi examined Plaintiff on October 1, 2001 and again on October 23, 2001. (R. at 340-41). Plaintiff still complained of attacks of abdominal pain in the upper-left quadrant of her abdomen that radiated around to her back and lasted from a half hour to an hour, and Dr. Alsaadi ordered an upper-endoscopy*fn10 with biopsy on November 2, 2001. (R. at 340-343). The endoscopy showed a clear duodenum and no evidence of any ulcers or duodenitis. (R. at 343). The antrum of the duodenum "was involved with moderate gastritis,*fn11

mainly bile gastritis." (Id.). There was also a large amount of bilious material in the stomach, and "[m]oderate reflux was observed without any ulcerations." (Id.). The post-operative diagnosis was "mild bile gastritis with reflux." (Id.).

On November 5, 2001 the upper endoscopy was followed up with a CT scan of Plaintiff's abdomen and pelvis with and without contrast. (R. at 345). The scan showed no abnormalities on the liver, and the spleen, pancreas, adrenal glands and both kidneys appeared unremarkable. (Id.). The urinary bladder was also unremarkable; however, follicular type cysts were seen in both ovaries, and there also appeared to be a small area of localized free fluid. (Id.). Dr. Frank Papa, M.D., who performed the examination, noted that if this was of clinical interest, an ultrasound of the pelvis was recommended for further evaluation. (Id.).

Dr. Alsaadi examined Plaintiff again on November 15, 2001 and ordered the pelvic ultrasound on November 20, 2001. (R. at 339). Also, to combat the heartburn and reflux symptoms, Dr. Alsaadi prescribed Prevacid.*fn12 On that date, Plaintiff underwent a transabdominal and transvaginal pelvic ultrasound. (R. at 344). The ultrasound showed hemorrhagic cysts on Plaintiff's left ovary, but her right ovary and uterus appeared normal. (Id.). Plaintiff was to follow up with Dr. Alsaadi in one month (R. at 339), but no further medical records from Dr. Alsaadi appear in the record.

On January 9, 2002, Plaintiff returned to the Blue Unit of Magee Women's Hospital complaining of vaginal bleeding and underwent a pap smear, the results of which appeared within normal limits. (R. at 394). Plaintiff visited the Highlands Hospital emergency room in Connellsville, Pennsylvania on January 10, 2002 complaining of epigastric and abdominal pain, but her objective findings appeared normal. (R. at 667-674). Dr. Krafty prescribed Vicodin for the Plaintiff to take as needed for her pain. (R. at 674). Plaintiff returned to Dr. Krafty on January 24, 2002, this time complaining of abdominal and back pain. (R. at 354). While the physical examination was normal, Dr. Krafty ordered x-rays of the thoracic and lumbar spine. (Id.). Plaintiff underwent said x-rays on January 25, 2002, and each appeared normal. (R. at 356).

On January 31, 2002, Plaintiff visited Dr. Radha Reddi at the Blue Unit of Magee Women's Hospital for a reevaluation of her abdominal pain. (R. at 577). Dr. Reddi ordered another Pelvic ultrasound for March 8, 2002. (Id.).

Between visits with Dr. Reddi, Plaintiff again visited Dr. Krafty on February 14, 2002 complaining of persistent stomach pain going around her abdomen to her back. (R. at 721). To further investigate Plaintiff's complaints of epigastric and back pain, Dr. Krafty ordered a magnetic resonance imaging ("MRI") of Plaintiff's lumbar and thoracic spine. (R. at 727-728). Plaintiff went to Open MRI of Connellsville to undergo the procedure. (R. at 727). The MRI of the lumbar spine showed "early degenerative disc disease at L2-3 and L5-S1. No definitive disc herniation or stenosis, however, can be seen." (Id.). The MRI of the thoracic spine showed "no definite disc herniation or stenosis"*fn13 and found "no definite abnormality of the thoracic cord." (R. at 728).

Plaintiff again saw Dr. Krafty on March 5, 2002, complaining of shortness of breath. (R. at 725.) Dr. Krafty ordered a chest x-ray, which showed no acute pulmonary disease. (Id.).

Plaintiff visited the Highlands Hospital emergency room on March 6, 2002, but no abnormalities were found. (R. at 655-662). Plaintiff underwent the transvaginal and transabdominal ultrasound as scheduled on March 8, 2002, and ultrasound returned normal results but again showed possible polycystic ovaries. (R. at 384). Plaintiff followed up with Dr. Krafty on March 14, 2002, again complaining of persistent stomach pain. (R. at 720). On the progress notes from these respective visits, it is noted that a Dr. Reddi from Magee Women's hospital also examined Plaintiff, noting that Plaintiff complained that her bladder and uterus felt as if they were dropping. (R. at 720-721).

Plaintiff again visited the emergency room of Highlands Hospital on May 2, 2002 complaining of rectal bleeding, but again no abnormalities were found. (R. at 644-645). On May 3, 2002, Dr. Krafty ordered images of Plaintiff's abdomen, and the gas pattern was normal with no dilation of the colon or small intestine seen. (R. at 653).

Dr. Krafty ordered a colonoscopy for Plaintiff on May 13, 2002 to investigate her continued complaints of rectal bleeding and abdominal pain. (R. at 730-731) Dr. Robert E. Schoen, M.D., M.P.H. performed the procedure. (Id.). The colonoscopy revealed no lesions or polyps, and in the places where he could see the mucosa*fn14 of the colon, "the mucosa was pink and normal in appearance without evidence of colitis." (Id.). Dr. Schoen also noted that Plaintiff appeared to suffer a degree of discomfort with the colonoscope that is "out of proportion" given the medications administered during the procedure. (R. at 731).

Plaintiff made two visits to Frick Hospital in Mt. Pleasant, PA in June and July of 2002. (R. at 732-733). On June 19, 2002, Plaintiff went to the emergency room of Frick Hospital complaining of fluttering in her chest and feeling light-headed. (R. at 733). Dr. Thomas S. Talkowski ordered chest x-rays, which showed clear lungs, a heart that was not enlarged and otherwise gave no impression of active disease of the chest. (Id.). Plaintiff returned to the emergency room of Frick Hospital on July 24, 2002 complaining of abdominal pain. (R. at 732). The emergency room doctors ordered abdominal x-rays which returned a "nonspecific radiographic appearance of the abdomen" and showed "no active disease of the chest." (Id.). Between these two emergency room visits at Frick Hospital, Plaintiff again visited Dr. Krafty on July 9, 2002, making additional complaints of abdominal pain and increased lower back pain. (R. at 753).

Plaintiff continued to complain of abdominal pain, so in August of 2002, Dr. Krafty referred Plaintiff to a gastroenterologist, Dr. C. Rao Punukollu, M.D. (R. at 752). Dr. Punukollu examined Plaintiff on August 29, 2002 and ordered additional testing. (R. at 608-609). On September 12, 2002, Plaintiff underwent an "esophogogastroduodenoscopy with gastric antral biopsies"*fn15 to "evaluate the upper gastrointestinal tract and rule out active peptic ulcer disease or bezoar."(R. at 734-735). Plaintiff "tolerated the procedure well." (R. at 735). Based on this test, Dr. Punukollu diagnosed Patient with "Gastroesophageal reflux disease with hiatal hernia"*fn16 and "Gastroparesis with bowel reflux and gastritis." (Id.). Because Plaintiff complained that Prevacid made her constipated, Dr. Punukollu prescribed Prilosec.*fn17 Also, Dr. Krafty's Progress Notes from Highlands Hospital dated November 11, 2002 showed that the drugs Prevacid and Nexium gave Plaintiff constipation, and it was recommended that Plaintiff start a trial period of the drug Protonix.*fn18 (R. at 718).

On January 7, 2003 Plaintiff again visited Dr. Krafty, this time complaining of a chest cold, lower back pain and anxiety due to inability to work. (R. at 717). On January 21, 2003, Plaintiff went to the emergency room at Highlands Hospital complaining of pelvic and ovarian pain and was again examined by Dr. Krafty. (R. at 611-620). Dr. Krafty ordered another pelvic ultrasound, but the results were unremarkable. ...

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