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John F. Anthony v. Michael J. Astrue

September 6, 2011


The opinion of the court was delivered by: McLAUGHLIN, Sean J., District Judge.



John F. Anthony ("Plaintiff"), commenced the instant action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner"), denying his claim for supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. Plaintiff filed his application on February 28, 2006, alleging disability since birth due to cystic fibrosis (AR 120-126; 135).*fn1 His application was denied (AR 91-94), and following a hearing held before an administrative law judge ("ALJ") on May 29, 2007 (AR 36-88), the ALJ found that Plaintiff was not disabled at any time through the date of his decision, and therefore was not eligible for SSI (AR 15-22; 486). Plaintiff‟s request for review by the Appeals Council was denied (AR 1-4), rendering the Commissioner‟s decision final under 42 U.S.C. § 405(g). The instant action challenges the ALJ‟s decision. Presently pending before the Court are the parties‟ cross-motions for summary judgment. For the reasons that follow, Plaintiff‟s motion will be denied and the Commissioner‟s motion will be granted.


Plaintiff was 19 years old on the date of the ALJ‟s decision, has a high school education and no past relevant work experience (AR 20).

Plaintiff was treated by David M. Orenstein, M.D., a pulmonary specialist, at the Children‟s Hospital of Pittsburgh for his cystic fibrosis (AR 256-271). In 2001, Dr. Orenstein noted that Plaintiff was doing "very well," his activity level had been "excellent," and he was "doing beautifully" (AR 387). He recommended no treatment changes (AR 387). Throughout 2002 Plaintiff continued to do "very nicely" with respect to his cystic fibrosis (367; 375; 378).

Plaintiff was also seen at Saint Vincent Sports Medicine by Jonathan McKrell, M.D. (254-255). Treatment notes dated February 19, 2002 reflect a diagnosis of cystic fibrosis, pancreatic insufficiency and a history of GERD (AR 254). It was noted that Plaintiff was doing "extremely well" with "essentially no pulmonary symptoms" and that his appetite remained "good" and his pulmonary function test results were "excellent" (AR 254). At the end of 2002 and during 2003, Plaintiff was seen by Dr. McKrell for various complaints such as pain secondary to an auto accident, white spots on his face and a sore in his nose (AR 364; 357; 347).

Plaintiff returned to Dr. McKrell on April 29, 2004, who reported Plaintiff was "doing very well" with increased activity levels and had not been hospitalized in three years (AR 252). He noted that Plaintiff was able to wrestle and that it "went very well" (AR 252). Plaintiff‟s medications consisted of pancreatic enzymes, Singulair, Advair, and Atrovent as needed (AR 252). His physical examination was unremarkable and Dr. McKrell found that his GERD symptoms were controlled with medication (AR 252).

Plaintiff continued to treat with Dr. McKrell throughout 2004 for various complaints unrelated to his cystic fibrosis, including a dog bite, shoulder pain, rashes and ring worm. (AR 243-251). Plaintiff continued to wrestle despite his complaints of shoulder pain (AR 247). In October 2004, Plaintiff contracted a cold from a friend and developed a significant cough (AR 243). On physical examination, Plaintiff was not in respiratory distress, and he was prescribed antibiotics (AR 243).

In 2005, Plaintiff returned to Dr. McKrell for follow-up and complained of a lump on his chest (AR 241). On physical examination, Dr. McKrell noted that Plaintiff was in no acute distress, and other than the lump on his chest, his physical examination was unremarkable (AR 241). On January 27, 2005, Plaintiff reported that he had not "felt ill" and denied any shortness of breath, cough, chills, nights sweats, fatigue or weight loss (AR 238). X-rays of his ribs dated January 27, 2005 revealed no evidence of acute rib fracture or other bony abnormalities (AR 240). On February 17, 2005, it was noted that Plaintiff had no problems with wrestling, his general health had been good and there were no problems with his cystic fibrosis (AR 236).

Plaintiff contracted the flu, and at his office visit on March 3, 2005, Dr. McKrell reported that Plaintiff had done "remarkably well" with his cystic fibrosis, and had participated in a "very competitive" wrestling career while in high school (AR 230). Plaintiff reported that while the antibiotics prescribed by Dr. Orenstein had helped his flu symptoms, he complained of shortness of breath and chest heaviness (AR 230). Plaintiff was looking forward to a planned trip to Florida (AR 230). Dr. McKrell reported on physical examination that Plaintiff did not appear acutely ill and his lungs were clear, but he exhibited significant expiratory wheezes with deeper breath and forced expiration (AR 230). Upon consultation with Dr. Orenstein, it was decided that Plaintiff would be admitted for a course of intravenous antibiotics in order to improve his pulmonary function to enable him to travel to Florida (AR 230-231).

Plaintiff was seen by Dr. Orenstein on July 28, 2005 and described himself as "excellent" with an "amazing" energy level and huge appetite (AR 270). Plaintiff was wrestling, lifting weights and swimming (AR 270). He reported that he coughed very little and that his gastrointestinal symptoms were well controlled (AR 270). On physical examination, Dr. Orenstein reported that his chest diameter was normal, there were no retractions and his lungs were clear (AR 270). Pulmonary function testing showed only "mild small airways obstruction" (AR 271). Dr. Orenstein felt Plaintiff was "doing very nicely" but because throat cultures in the past revealed the presence of MRSA, he prescribed an antibiotic to be inhaled for the next month (AR 271).

Plaintiff returned to Dr. Orenstein‟s office on September 22, 2005 and was seen by Kathleen Godfrey, RN, CRNP (AR 266-269). Plaintiff complained of a recurrence of his cough, significant shortness of breath, wheezing and chest discomfort (AR 266). He reported that he had been lifting weights and working out in preparation for wrestling, but had been unable to run (AR 266). Plaintiff reported normal bowel movements, but complained of "terrible" heartburn (AR 266-267). On physical examination, his breath sounds were remarkable for scattered inspiratory and expiratory polyphonic high-pitched wheezes with good air movement throughout (AR 267). Plaintiff‟s pulmonary function testing revealed that he had a moderate to severe degree of lower airways obstruction, which Dr. Orenstein found was markedly decreased from his usual studies (AR 268). It was noted that Plaintiff usually had normal lung function (AR 268). He was prescribed an oral steroid course and an antibiotic to cover a suspected staph infection (AR 268).

On October 6, 2005, Dr. Orenstein noted that Plaintiff was doing worse despite his recent course of medication (AR 264). Physical examination revealed tenderness of Plaintiff‟s sternum and rib cage, and his lung fields were clear to auscultation (AR 263). His pulmonary function tests showed some improvement (AR 264). Dr. Orenstein decided to admit Plaintiff to the hospital for intravenous antibiotic treatment (AR 264).

Plaintiff was hospitalized from October 10, 2005 until October 28, 2005 as a result of exacerbation of his symptoms related to cystic fibrosis (AR 283-288). He was administered a course of antibiotics and was "subjectively and clinically well" upon discharge (AR 287). He reported that his chest pain had improved and his blood sugars were well controlled (AR 287). In addition to his regular medication regimen, he was given a home regimen of insulin and one month of double antibiotic therapy (AR 287).

On November 10, 2005, Dr. Orenstein reported that Plaintiff was doing considerably better following his discharge from the hospital (AR 260). Plaintiff‟s breathing was "much better," he had "zero" cough, less chest pain and had been able to work out for wrestling (AR 260). His gastrointestinal symptoms were "well controlled" (AR 260). His pulmonary function tests showed mild small airways obstruction (AR 261). Dr. Orenstein found that Plaintiff was "much improved" and continued his antibiotic therapy but decreased his steroid dosage (AR 261).

Plaintiff was seen by In-grid Libman, M.D., an endocrinologist, on December 14, 2005 (AR 296-298). Plaintiff had been diagnosed with diabetes in October 2005, and reported that his symptoms had improved since starting insulin therapy (AR 281; 297). It was noted that he participated in wrestling daily with no energy level difficulties (AR 297). Plaintiff did, however, complain of some abdominal discomfort and vision difficulties (AR 297). His physical examination was unremarkable and he was assessed with cystic fibrosis related diabetes (AR 298). Dr. Libman noted that his symptoms were "very well-controlled" with no hypoglycemic episodes or trends (AR 298). She continued his insulin regimen (AR 298).

Plaintiff returned to Saint Vincent Sports Medicine on January 28, 2006 complaining of a facial lesion (AR 214). He was assessed with a facial infection, most likely staph, and was continued on antibiotics (AR 214). On January 30, 2006, Dr. McKrell noted on physical examination that Plaintiff was well hydrated, well developed, well nourished and in no acute distress (AR 212). He was diagnosed with impetigo and released to return to wrestling (AR 212). On February 2, 2006, Dr. McKrell prescribed an antibiotic for a suspected herpes zoster outbreak following Plaintiff‟s participation in a wrestling match (AR 210-211). By February 6, 2006, Plaintiff‟s condition had improved while on antibiotics (AR 208).

On February 9, 2006, Plaintiff returned to Dr. Orenstein and reported that he was doing much better and denied any coughing, shortness of breath or chest pain (AR 257). Plaintiff had no gastrointestinal complaints, reporting a good appetite with normal bowel movements (AR 257). Dr. Orenstein noted that Plaintiff had been busy wrestling and was planning on attending college next year (AR 257). On physical examination, Dr. Orenstein found no retractions or coughing, percussion did not reveal any hyperresonance, and there was no wheezing, crackles or rhonci found on chest exam (AR 258). His pulmonary function test showed improvement from his last visit (AR 258). Dr. Orenstein stated that Plaintiff was doing reasonably well except for a few coughing episodes since his last visit and his blood sugars were under control (AR 258). His medications were adjusted and he was to return in two months (AR 258).

When seen by Dr. Orenstein on May 2, 2006, Plaintiff reported that he was "doing very well" and his exercise tolerance was "great, excellent, phenomenal" (AR 273). Plaintiff further reported that he continued to work out even though wrestling season was over (AR 273). Plaintiff stated that his breathing had been good with "zero" cough, his bowel symptoms were well controlled and his glucose levels had been "very good" (AR 273). Dr. Orenstein reported on physical examination that Plaintiff appeared "very well" and auscultation revealed clear lung fields (AR 274). Pulmonary function tests ...

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