KOCH v. ASTRUE

Filing 22

ORDER - ORAL ARGUMENT set for 6/5/2012 09:00 AM in room #335, United States Courthouse, 101 Northwest MLK Boulevard, Evansville, Indiana before Magistrate Judge William G. Hussmann, Jr. Signed by Magistrate Judge William G. Hussmann, Jr., on 5/2/2012.(NRN)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
JODY L. KOCH
(Social Security No. XXX-XX-4187),
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

3:11-cv-133-WGH-RLY

ORDER SETTING ORAL ARGUMENT
This matter is before the Honorable William G. Hussmann, Jr., United
States Magistrate Judge, pursuant to the parties’ consents and an Order of
Reference entered January 19, 2012. (Docket No. 14). Briefing is now complete.
(Docket Nos. 15, 20, 21).
The parties are hereby ORDERED to appear for an ORAL ARGUMENT on
TUESDAY, JUNE 5, 2012, at 9:00 a.m., Evansville time (CDT), in Room 335,
U.S. Courthouse, Evansville, Indiana. Plaintiff and her counsel of record are to
appear in person at this oral argument. Counsel for the Commissioner may
appear either in person or by telephone by placing a call to the court’s bridge
line -- [phone].
Each side will be given twenty (20) minutes to argue their position with
respect to the matter.

The Magistrate Judge specifically notes three major issues that the parties
should be prepared to address: (1) whether Plaintiff’s impairment met Listing
14.07A; (2) whether Plaintiff’s impairment was severe enough that it
substantially equaled Listing 14.07A; and (3) whether the ALJ asked a proper
hypothetical question to the VE that incorporated all of Plaintiff’s limitations.
Issues 1 and 2:
The applicable relevant portion of the Listings in this case provides:
14.07 Immune deficiency disorders, excluding HIV infection. As
described in 14.00E. With:
A. One or more of the following infections. The infection(s) must
either be resistant to treatment or require hospitalization or
intravenous treatment three or more times in a 12-month period.
1. Sepsis; or
2. Meningitis; or
3. Pneumonia; or
4. Septic arthritis; or
5. Endocarditis; or
6. Sinusitis documented by appropriate medically acceptable
imaging.
OR
****
C. Repeated manifestations of an immune deficiency disorder, with
at least two of the constitutional symptoms or signs (severe fatigue,
fever, malaise, or involuntary weight loss) and one of the following at
the marked level:
1. Limitation of activities of daily living.

-2-

2. Limitation in maintaining social functioning.
3. Limitation in completing tasks in a timely manner due to
deficiencies in concentration, persistence, or pace.
20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 14.07. An infection is
“resistant to treatment” if it did not respond adequately to an appropriate course
of treatment. Id. at Listing 14.00C(11).
In his decision finding Plaintiff not disabled, the ALJ concluded that
Plaintiff did not meet Listing 14.07A because her last documented sinus
infection occurred prior to her alleged onset date and prior to being diagnosed
with and treated for an immune deficiency disorder. (R. 19). Furthermore, the
ALJ determined that Plaintiff could not satisfy Listing 14.07A because there were
no imaging studies documenting Plaintiff’s sinusitis.
Listing 14.07A does require a showing of immune deficiency disorder
coupled with one of six specific types of infections. There is no dispute that
Plaintiff suffered from an immune deficiency disorder. One of the types of
infections needed to meet Listing 14.07A is sinusitis documented by appropriate
medically acceptable imaging. While the ALJ was correct in noting that there
were no imaging studies in the record which documented Plaintiff’s sinusitis, the
ALJ did find that one of Plaintiff’s severe impairments was a history of chronic
sinusitis. Listing 14.00B explains that for all immune deficiency disorders “we
will make every reasonable effort to obtain your medical history, medical
findings, and results of laboratory tests.” Consequently, it appears that, if the
only obstacle to a finding that Plaintiff met Listing 14.07A was a lack of imaging

-3-

studies which documented Plaintiff’s sinusitis, it was incumbent on the ALJ to
point this out and provide Plaintiff with the opportunity to provide such medical
evidence.
With respect to the issue of when Plaintiff was diagnosed with her immune
deficiency disorder and when she had sinusitis, the issue is more complex.
Pursuant to SSR 80-20, it is the ALJ’s duty to determine an onset date of
disability based on all of the medical evidence. As explained by the Seventh
Circuit, medical evidence is the primary factor in determining the onset date of a
disability, and an onset date can never be inconsistent with the medical
evidence. Lichter v. Bowen, 814 F.2d 430, 434 (7th Cir. 1987). A claimant’s
onset date is to be adjusted based on the claimant’s work history. Nolen v.
Sullivan, 939 F.2d 516, 519 (7th Cir. 1991). However, the Magistrate Judge has
been unable to find any relevant legal authority permitting the ALJ to disregard
relevant medical evidence from a time prior to the adjusted onset date when
determining whether an impairment is severe at step two or meets a listing at
step three. If the medical evidence points to a particular onset date, but the
claimant continued to engage in substantial gainful activity beyond that date,
then the claimant does not meet the definition of disability under the Social
Security regulations while she was still working, and she cannot obtain benefits
for that time period. However, it is the Magistrate Judge’s view that, if the
medical evidence demonstrates that Plaintiff met Listing 14.07A prior to ceasing
substantial gainful activity, that medical evidence can still be relied on to make a

-4-

disability determination once Plaintiff no longer engaged in substantial gainful
activity.
In this case, the medical evidence in the record essentially begins in
January 2007, but reveals that, prior to January 2007, Plaintiff had been seen
extensively for a history of allergic rhinitis and chronic sinusitis. (R. 199-200).
Plaintiff’s treating physician, Anne McLaughlin, M.D., had already performed one
set of testing and, according to the medical records, a second set of testing,
occurring on February 2, 2007 (R. 250-51), confirmed that Plaintiff’s
immunoglobulins had not responded to immunization (R. 203). Based on
Plaintiff’s two sets of abnormal lab work, Dr. McLaughlin diagnosed specific
antibody deficiency which is a form of immune deficiency disorder. (R. 203).
Plaintiff also had symptoms of a sinus infection on February 16, 2007. (R. 201).
Therefore, the medical evidence appears to reveal that, as of February 2007,
Plaintiff had both an immune deficiency disorder and chronic sinusitis that was
resistant to treatment and was still occurring.1 In March 2007, Dr. McLaughlin
suggested that Plaintiff begin IVIG therapy to keep Plaintiff’s sinus infections
under better control, and Plaintiff then went on IVIG therapy in April 2007. (R.
203, 205). Therefore, contrary to the ALJ’s assertions, the uncontradicted,
objective medical evidence reveals that Plaintiff was receiving IVIG therapy to

In fact, on October 21, 2009, Dr. McLaughlin noted that Plaintiff’s sinusitis had
been very difficult to treat with multiple courses of antibiotics and other sinus
medications until Plaintiff started her intravenous immunoglobulin (“IVIG”) therapy
sessions. (R. 335). Dr. McLaughlin opined that Plaintiff met the criteria of Listing 14.07A
because Plaintiff had an immune deficiency disorder coupled with sinusitis that was
resistant to treatment. (R. 335).
1

-5-

treat Plaintiff’s recurrent, chronic sinusitis that was previously difficult to treat
and would not respond properly to multiple courses of antibiotics and other
medications.
The question presented in Plaintiff’s situation, then, is: What happens
when the sinus infections go away and are no longer recurring ostensibly
because of the IVIG therapy?2
The parties should be prepared to discuss whether, assuming Plaintiff
initially met Listing 14.07A when she had an immune deficiency disorder
coupled with sinusitis that was resistant to treatment, Plaintiff’s impairment
continued to meet Listing 14.07A after the sinus infections were controlled by
IVIG therapy.
In the alternative, the parties should be prepared to discuss why Plaintiff’s
impairment did not at least “substantially equal” Listing 14.07A given that: (1)
Plaintiff’s impairment initially met Listing 14.07A; (2) the evidence demonstrates
that the IVIG treatments are medically necessary to keep Plaintiff’s sinus
infections from recurring; and (3) the IVIG treatments are debilitating both on
the day of the treatment and the day after.
Issue 3:
In addition to whether or not Plaintiff’s impairment met Listing 14.07A, the
parties should be prepared to address the hypothetical question that was posed
to the vocational expert (“VE”). The ALJ found that Plaintiff was not disabled

The record reveals that these IVIG therapy sessions occur once every four weeks
(13 times a year) and are never expected to cease.
2

-6-

because she retained the residual functional capacity to perform her past work
as an attorney as she actually performed it. The ALJ indicated that he based
this determination on the testimony of the VE, John Grenfell, Ph.D. The ALJ
explained that “Dr. Grenfell’s testimony indicates the above residual functional
capacity does not preclude work as an attorney as the claimant actually
performed it because the claimant worked out of her home, set up her own
hours, and worked less than 8 hours per day.” (R. 28). However, a careful
review of the hypothetical question and the VE’s response reveals that the VE
did not express an opinion regarding whether Plaintiff could perform her past
work as she actually performed it. The VE’s full answer to the ALJ’s hypothetical
question incorporating Plaintiff’s residual functional capacity was:
Well, she performed her job working out of her home and setting up
her own hours and less than eight hours a day. I would suggest
that she could not do her job as it is generally performed.
(R. 57).
That response does not specifically address whether Plaintiff can perform
her past work as she actually performed it. The ALJ did not ask any follow-up
questions to resolve the discrepancy. The Magistrate Judge believes that may be
an error that requires remand, as the ALJ is not permitted to assume what the
VE’s answer would have been. The parties should also be prepared to address
whether the ALJ’s hypothetical question to the VE should have included the
need to miss work two days every four weeks. Plaintiff testified that her IVIG
treatments occurred once every four weeks for a total of 13 times a year, that
they were medically necessary, that they required at least a five-hour day at the
-7-

doctor’s office, and that they were debilitating for that day and the next day as
well. This is consistent with all of the objective medical evidence as well. It
appears that, based on Plaintiff’s testimony and the objective medical evidence,
this additional limitation should have been included in Plaintiff’s RFC and the
hypothetical question to the VE.
In conclusion, the parties will be provided with the opportunity to present
oral argument at the hearing. They should be prepared to address whether
Plaintiff’s impairment met or substantially equaled Listing 14.07A. The parties
should also address the perceived flaws in the hypothetical question that the
ALJ posed to the VE.
SO ORDERED.
Dated: May 2, 2012

__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana

Electronic copies to:
Steve Barber
BARBER & BAUER, LLP
[e-mail]
Thomas E. Kieper
UNITED STATES ATTORNEY’S OFFICE
[e-mail]

-8-