KOCH v. ASTRUE
Filing
25
MEMORANDUM DECISION AND ORDER - For the reasons explained in this Order, the final decision of the Commissioner is REMANDED. Signed by Magistrate Judge William G. Hussmann, Jr., on 7/17/2012.(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.
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3:11-cv-133-WGH-RLY
MEMORANDUM DECISION AND ORDER
This matter is before the Honorable William G. Hussmann, Jr., United
States Magistrate Judge, upon the Consents filed by the parties (Docket Nos. 9,
13) and an Order of Reference entered by Chief Judge Richard L. Young on
January 19, 2012 (Docket No. 14). The Magistrate Judge conducted a hearing in
this matter on June 5, 2012. Steve Barber appeared on behalf of Plaintiff, while
Thomas E. Kieper and John Martin appeared on behalf of the Commissioner.
I. Statement of the Case
Plaintiff, Jody L. Koch, seeks judicial review of the final decision of the
agency, which found her not disabled and, therefore, not entitled to Disability
Insurance Benefits (“DIB”) under the Social Security Act (“the Act”). 42 U.S.C. §§
416(i), 423(d); 20 C.F.R. § 404.1520(f). The Court has jurisdiction over this
action pursuant to 42 U.S.C. § 405(g).
Plaintiff applied for DIB on April 13, 2009, alleging disability since
January 1, 2008. (R. 100-08). The agency denied Plaintiff’s application both
initially and on reconsideration. (R. 65-68, 73-79). Plaintiff appeared and
testified at a hearing before Administrative Law Judge Stuart T. Janney (“ALJ”)
on November 5, 2009. (R. 33-62). Plaintiff was represented by an attorney; also,
a vocational expert (“VE”) testified. (R. 33). On December 23, 2009, the ALJ
issued his opinion finding that Plaintiff was not disabled because she retained
the residual functional capacity (“RFC”) to perform her past work. (R. 16-29).
After Plaintiff filed a request for review, the Appeals Council denied Plaintiff’s
request, leaving the ALJ’s decision as the final decision of the Commissioner. (R.
1-3). 20 C.F.R. §§ 404.955(a), 404.981. Plaintiff then filed a Complaint on
October 25, 2011, seeking judicial review of the ALJ’s decision.
II. Statement of the Facts
A. Vocational Profile
Born on March 10, 1959, Plaintiff was 50 years old at the time of the ALJ’s
decision, with a J.D. degree. (R. 29, 37-38). Her past relevant work experience
included work as an attorney. (R. 39).
B. Medical Evidence
1. Plaintiff’s Impairments
On January 3, 2007, Plaintiff visited Anne McLaughlin, M.D., who
specializes in allergy and immunology; Plaintiff had a history of allergic rhinitis
and chronic sinusitis. (R. 199-200). Plaintiff was not currently having any
symptoms of sinusitis or asthma. Plaintiff’s lab work previously showed a low
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titer to diphtheria and an indeterminate titer to tetanus, with positive antibodies
to four types of strep pneumonia, but a negative response to all others. In
addition, Plaintiff’s white blood cell count and neutrophil count were low. (R.
199). Dr. McLaughlin was concerned about the “low-ish white blood count with
low neutrophil count” and noted that Plaintiff “did not have much response to
diphtheria or tetanus.” Dr. McLaughlin was seeking an explanation for Plaintiff’s
recurrent sinus infections. Dr. McLaughlin ordered vaccinations for
tetanus/diphtheria/pertussis, as well as Pneumovax, and planned to measure
Plaintiff’s titer levels post vaccination. She also ordered a re-measure of
Plaintiff’s white blood count, neutrophil count, and monocyte count to see if
there were any changes from recent tests. (R. 199). Plaintiff’s lab work was
taken on February 2, 2007. (R. 250-51).
On February 16, 2007, Dr. McLaughlin saw Plaintiff for a follow-up. (R.
201). In the time since Plaintiff’s January visit, Plaintiff had received
vaccinations for tetanus, diphtheria and pneumococcus, and blood had been
collected and tested to determine whether her body had produced antibodies in
response to those vaccinations. (R. 201). Lab results showed that Plaintiff did
not produce antibodies in response to diphtheria, but the remainder of the lab
results were still not back yet. (R. 201). On that date, Plaintiff also had
symptoms of a sinus infection. (R. 201). She also continued “to be quite
frustrated with her lack of energy and always feeling ill.” (R. 201).
On March 6, 2007, Plaintiff again visited Dr. McLaughlin for a review of
her lab results regarding a possible immune system deficiency. (R. 203-04).
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Plaintiff reported experiencing a lot of recent fatigue. Dr. McLaughlin noted that
on two occasions Plaintiff’s immunoglobulins had not responded to
immunization. (R. 203). Dr. McLaughlin diagnosed specific antibody deficiency
which she explained was consistent with Plaintiff’s complaints of fatigue and
chronic sinus infections; she recommended a trial of intravenous
immunoglobulin (“IVIG”) therapy for six months to see if it would better control
Plaintiff’s symptoms and keep her sinus infections under better control. (R.
203).
Plaintiff visited Dr. McLaughlin to receive her first IVIG treatment on
April 10, 2007.1 (R. 205). It was noted that Plaintiff was undergoing the
treatment because her antibodies do not mount an appropriate functional
response. She tolerated the procedure well and was told to return in four weeks
for her next infusion. (R. 205).
On May 10, 2007, Plaintiff returned for her second IVIG treatment with Dr.
McLaughlin. (R. 206). Plaintiff felt that she had experienced increased energy
after the first treatment, and she had experienced no sinus infections. It was
noted that, in addition to the IVIG treatment, she was on allergy immunotherapy
as well, which was causing her some problems. (R. 206).
The records indicate that an IVIG therapy session lasts in excess of four or five
hours. (R. 302-05). Plaintiff contends that the infusions are exhausting and that she
spends the remainder of the day and night of her treatment sleeping. (R. 120). The
treatment cost over $41,000 per year, and, because there is no cure for an immune
deficiency, this will be an annual cost for as long as Plaintiff continues her treatment.
(R. 120). Plaintiff also receives allergy shots on at least a bi-weekly basis (R. 212),
which means that Plaintiff visits Dr. McLaughlin’s clinic three times each month (one
time for infusions and two additional times for allergy shots). (R. 212).
1
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At Plaintiff’s IVIG treatment session on June 7, 2007, she reported still
being somewhat fatigued, but she had no sinusitis. (R. 209).
On September 5, 2007, and October 3, 2007, Plaintiff visited Dr.
McLaughlin for IVIG treatment and reported that she had experienced a cold,
but that she had not developed sinusitis. (R. 212-13).
At Plaintiff’s IVIG treatment session on December 4, 2007, Plaintiff
reported to Dr. McLaughlin that she had not experienced any bouts of sinusitis
and had experienced increased energy; she was also sleeping well at night and
her allergy shots were going well. (R. 216).
On February 28, 2008, Dr. McLaughlin reported that Plaintiff had a
problem with dog saliva. (R. 221). Her family got a new dog and the dog licked
Plaintiff’s face causing eye swelling and redness. (R. 221). An antihistamine
treatment resolved this problem. (R. 221).
On May 29, 2008, Dr. McLaughlin commented that Plaintiff was on IVIG
treatment; she was late in getting an infusion one month, and since that time
she had experienced some increasing problems with fatigue. (R. 226). Plaintiff
had not had a sinus infection since her last visit. (R. 226). Plaintiff’s IVIG
treatment session on June 24, 2008, resulted in a similar observation by Dr.
McLaughlin. (R. 227). However, by her IVIG treatment session on July 22,
2007, she was experiencing increased energy again. (R. 229).
On September 16, 2008, at Plaintiff’s IVIG treatment session, Dr.
McLaughlin again reported that Plaintiff had not had any sinus infections and
that her allergies were well-controlled. (R. 232). However, Dr. McLaughlin also
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noted that Plaintiff was still having problems with fatigue, which was worse over
the last two weeks. (R. 232).
Again, on October 14, 2008, Plaintiff reported to Dr. McLaughlin that she
was still having problems with fatigue, which was worse over the last several
weeks. Dr. McLaughlin noted that Plaintiff felt exhausted by 1:00 p.m. each day
and was ready for a nap; she keeps herself awake during the week, but she
sometimes takes a six-hour nap on the weekends. (R. 236).
On November 13, 2008, Dr. McLaughlin reported no fevers, but Plaintiff
had some recent post-nasal drainage and felt more exhausted. (R. 238).
According to Dr. McLaughlin, Plaintiff had an upcoming appointment with an
acupuncturist, and she was changing primary care physicians. (R. 238).
Plaintiff reported still dealing with exhaustion and drainage every day at
her IVIG treatment session on December 11, 2008. (R. 243). She had been to
see an acupuncturist, but she did not find this helpful. She also was seeing a
new primary care doctor. (R. 243).
At Plaintiff’s IVIG treatment sessions on January 8, 2009, February 5,
2009, March 5, 2009, and April 2, 2009, Plaintiff reported still having problems
with chronic fatigue. (R. 244-46, 249).
Plaintiff visited Mark Graves, M.D., on March 12, 2009, to establish a
relationship with a new primary care physician. (R. 192-97). Plaintiff
complained of fatigue, immune deficiency, and depression. (R. 192). Plaintiff
complained of chronic fatigue which had lasted for six to ten years and which
caused her to barely function at home and required taking naps for most of the
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day. Plaintiff reported that she was tried on antidepressants, which did not
help, and that her treatment for immune deficiency also had not helped. (R.
192). Dr. Graves noted that Plaintiff’s laboratory data appeared normal except
that it showed that she had been exposed to the Epstein-Barr virus, which,
though not a specific cause, might be consistent with chronic fatigue syndrome.
(R. 192). Plaintiff indicated that her depression stemmed from her being tired
and her inability to do activities that she would like to do. (R. 192). Dr. Graves
recommended a sleep study before placing Plaintiff on medication for idiopathic
chronic fatigue syndrome. (R. 192).
On April 30, 2009, Plaintiff saw Dr. McLaughlin’s partner, Majed Koleilat,
M.D., who reported that since Plaintiff’s last visit, she had not experienced any
fevers, sinus infections, pneumonia, or skin infections. (R. 291). Plaintiff
reported significant fatigue. (R. 291).
On a follow-up with Dr. Graves on May 11, 2009, Plaintiff continued to be
fatigued and was having difficulty falling asleep. (R. 293-94). The sleep study
had been difficult, and she had difficulty falling asleep. (R. 293). The results of
the sleep study were not yet available, so Dr. Graves only prescribed mineral
supplements and set another six-week follow-up. (R. 293). At that time, Dr.
Graves was considering prescribing Adderall, but this would require an EKG and
the purchase of a BP kit. (R. 293).
On May 19, 2009, Plaintiff saw Jeffrey W. Gray, Ph.D., for a mental status
examination. (R. 260-63). Plaintiff noted that Dr. McLaughlin identified her
problem and that she had been able to eliminate Plaintiff’s sinus infections. (R.
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260). Plaintiff did report that she still had some trouble concentrating. (R. 260).
Dr. Gray’s mental status examination showed that Plaintiff functioned in the
above average range, and she had not experienced any significant intellectual
decline from premorbid levels. Dr. Gray saw no clear signs that depression or
anxiety had affected these findings. From a daily living perspective, Plaintiff
commented that her activities varied greatly depending on her fatigue level. (R.
261). She took part in her children’s school activities, but did few household
chores. (R. 261-62). Dr. Gray opined that Plaintiff’s emotional status was
unremarkable, but that she was experiencing depression. (R. 262). Dr. Gray
suggested that Plaintiff’s primary symptom was fatigue, and he noted that the
fatigue was related to her immunoglobulin deficiency, rather than to her
depression, and it was not unlike the fatigue that is seen in multiple sclerosis
patients. (R. 262). From a strictly psychological perspective, Dr. Gray stated
that Plaintiff could handle work-like stresses, be fairly reliable and independent,
remember simple work rules, and handle simple problems. (R. 262). Dr. Gray
rated Plaintiff’s Global Assessment of Functioning at 70. (R. 263).
At Plaintiff’s IVIG treatment session on May 28, 2009, Dr. McLaughlin
reported that Plaintiff had not had any fevers or sinus infections since her last
visit. (R. 295). She continued to have problems with stress in her life and with
increasing fatigue. (R. 295). Plaintiff had increased her dose of Paxil, and she
did not have the results from her sleep study. (R. 295).
Plaintiff met with sleep specialist Faheem Abbasi, M.D., on June 17, 2009,
for a follow-up to the sleep study. (R. 297-98). Though the study showed no
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evidence of sleep apnea, Plaintiff’s sleep efficiency was only 73.2%, and Plaintiff
only slept 368 minutes. The abnormal things noted by Dr. Abbasi were her
latency to sleep onset which was 38 minutes and the latency of REM sleep which
was 110.5 minutes. (R. 297). Both of these values are higher than expected. (R.
297). His assessment was that the sleep study itself was normal, but there was
evidence of “sleep onset insomnia” as evidenced by a high sleep latency and high
REM latency. (R. 297). A Sleep Center physician, Sultan Niazi, M.D., found that
there were 272 leg movements, consistent with periodic limb movement disorder,
which is “severe.” (R. 306-07). Dr. Abbasi recommended Lunesta as a sleep aid,
but he did not think either Ritalin or Adderall was indicated. (R. 297). Dr.
Abbasi suggested that Provigil might be a consideration if Plaintiff continued
with daytime sleepiness, because of its limited addictive potential and its
favorable side effects, as opposed to Ritalin or Adderall. (R. 297).
On June 25, 2009, Plaintiff saw Dr. McLaughlin for an IVIG treatment
session and indicated that Lunesta seemed to be helping her. Dr. McLaughlin
reported no sinus infections since Plaintiff’s last visit. (R. 299).
On July 16, 2009, Dr. Abbasi reported that Plaintiff had responded “very
well” to Lunesta, and she was sleeping much better. (R. 321). According to this
report, Plaintiff did not feel tired, lethargic, or run down in the morning. (R.
321). Dr. Abbasi’s assessment was sleep onset insomnia that was very well
controlled with Lunesta. (R. 321).
Plaintiff also saw Dr. Koleilat on July 16, 2009, for another IVIG treatment
session. (R. 322-23). Since her last visit, Plaintiff had not experienced any
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fevers, sinus infections, pneumonias, or skin infections. Plaintiff continued to
report a significant amount of fatigue that she attributed to her depression,
which was driven by her social situation, as well as some of her trouble sleeping.
(R. 322).
On August 13, 2009, Dr. McLaughlin reported that Plaintiff had not had
any sinus infections since her last office visit. (R. 324-25). Plaintiff indicated
that her IVIG treatment helped to control her episodes of sinusitis. It was noted
that Plaintiff would pretreat with prednisone the day before, day of, and day after
her IVIG treatment. (R. 324).
On September 1, 2009, Plaintiff saw Dr. Graves for a follow-up and
evaluation of several chronic medical problems. (R. 326-27). Plaintiff related
new concerns about her fatigue, noting that she was still having difficulty
managing her day-to-day activities. (R. 326). Dr. Graves suggested three
medications, and Plaintiff chose Provigil. (R. 326).
Plaintiff saw Dr. McLaughlin for her usual IVIG therapy session on
September 10, 2009. (R. 328-29). Dr. McLaughlin stated that there had been
no sinus infections, and Plaintiff’s symptoms did not interfere with her sleep or
daily activities. (R. 328).
On October 8, 2009, Dr. McLaughlin again reported that there had been
no sinus infections, and Plaintiff’s symptoms did not interfere with her sleep or
daily activities. (R. 330-31).
On October 21, 2009, Dr. McLaughlin addressed a letter to Plaintiff’s
representative noting that Plaintiff had asked her to discuss Plaintiff’s social
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security claim. (R. 335). Dr. McLaughlin explained that she treated Plaintiff for
problems with chronic sinusitis, allergic rhinitis, and a specific antibody
deficiency. According to Dr. McLaughlin, Plaintiff satisfied the criteria for an
immune deficiency disorder because she received IVIG infusions every four
weeks and because she had sinusitis that was resistant to treatment. (R. 335).
Dr. McLaughlin noted that the sinusitis was very difficult to treat with multiple
courses of antibiotics and other sinus medications until Plaintiff started IVIG
treatment. (R. 335). Dr. McLaughlin also reported repeated manifestations of an
immune disorder with severe fatigue and malaise and limitations in completing
tasks in a timely manner due to deficiencies in concentration, persistence, and
pace. (R. 335).
After the ALJ’s decision, Plaintiff submitted another letter from Dr.
McLaughlin to the Appeals Council. It reiterated Dr. McLaughlin’s opinions from
October 21, 2009, and explained that Plaintiff has experienced both severe
fatigue and malaise. Dr. McLaughlin stated:
She also has marked limitation in completing activities of daily
living. She is unable to help her children with homework, do the
dishes, or complete the laundry. This is caused both by her inability
to concentrate as well as her physical limitations due to fatigue. She
has a frequent sense of exhaustion and takes naps on most days.
After treating Jody for several years for her medical conditions, and
not seeing any improvement in her severe fatigue or malaise, it is my
opinion that she is unable to engage in substantial gainful work.
(R. 337).
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2. State Agency Review
On June 3, 2009, state agency reviewing psychologist, J. Gange, Ph.D.,
completed a Psychiatric Review Technique Form. (R. 264-77). Dr. Gange opined
that Plaintiff did not have a severe mental impairment. (R. 264). Plaintiff had
mild impairment in activities of daily living; mild difficulties maintaining social
functioning, mild problems with concentration, persistence, and pace; and no
episodes of decompensation. (R. 274). On July 16, 2009, William A. Shipley,
Ph.D., affirmed Dr. Gange’s assessment. (R. 315).
On June 4, 2009, A. Dobson, M.D., a state agency reviewing physician,
completed a Physical Residual Functional Capacity Form. (R. 278-85). Dr.
Dobson opined that Plaintiff could lift ten pounds occasionally and less than ten
pounds frequently, and could stand/walk for two hours and sit for six hours in
an eight-hour workday. (R. 279). Plaintiff could never climb ladders, ropes, or
scaffolds, but could perform all other postural activities occasionally. (R. 280).
Dr. Dobson recommended that Plaintiff avoid concentrated exposure to extremes
of heat and cold, and she avoid hazards including unprotected heights. (R. 282).
Dr. Dobson also indicated that the record did not contain a medical source
statement that assessed Plaintiff’s physical capabilities. (R. 284). On July 21,
2009, Richard Wenzler, M.D., affirmed Dr. Dobson’s assessment. (R. 320).
III. Standard of Review
An ALJ’s findings are conclusive if they are supported by substantial
evidence. 42 U.S.C. § 405(g). Substantial evidence is defined as “such relevant
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evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28
L.Ed.2d 842 (1971); see also Perkins v. Chater, 107 F.3d 1290, 1296 (7th Cir.
1997). This standard of review recognizes that it is the Commissioner’s duty to
weigh the evidence, resolve material conflicts, make independent findings of fact,
and decide questions of credibility. Richardson, 402 U.S. at 399-400.
Accordingly, this Court may not re-evaluate the facts, weigh the evidence anew,
or substitute its judgment for that of the Commissioner. See Butera v. Apfel,
173 F.3d 1049, 1055 (7th Cir. 1999). Thus, even if reasonable minds could
disagree about whether or not an individual was “disabled,” the court must still
affirm the ALJ’s decision denying benefits. Schmidt v. Apfel, 201 F.3d 970, 972
(7th Cir. 2000).
IV. Standard for Disability
In order to qualify for disability benefits under the Act, Plaintiff must
establish that she suffers from a “disability” as defined by the Act. “Disability” is
defined as the “inability to engage in any substantial gainful activity by reason of
a medically determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last for a continuous
period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A). The Social
Security regulations set out a sequential five-step test the ALJ is to perform in
order to determine whether a claimant is disabled. See 20 C.F.R. § 404.1520.
The ALJ must consider whether the claimant: (1) is presently employed; (2) has
a severe impairment or combination of impairments; (3) has an impairment that
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meets or equals an impairment listed in the regulations as being so severe as to
preclude substantial gainful activity; (4) is unable to perform his/her past
relevant work; and (5) is unable to perform any other work existing in significant
numbers in the national economy. Id. The burden of proof is on Plaintiff during
steps one through four, and only after Plaintiff has reached step five does the
burden shift to the Commissioner. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir.
2000).
V. The ALJ’s Decision
The ALJ concluded that Plaintiff was insured for DIB through March 31,
2013; Plaintiff also had not engaged in substantial gainful activity since the
alleged onset date. (R. 18). The ALJ found that, in accordance with 20 C.F.R. §
404.1520, Plaintiff had four impairments that are classified as severe: (1)
immune deficiency; (2) history of chronic sinusitis controlled with infusions; (3)
allergic rhinitis; and (4) depression. (R. 18). The ALJ concluded that these
impairments did not meet or substantially equal any of the impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. (R. 18). Additionally, the ALJ opined
that Plaintiff’s allegations regarding the extent of her limitations were not fully
credible. (R. 22-28). Consequently, the ALJ concluded that Plaintiff retained the
following RFC: lift/carry/push/pull ten pounds occasionally and less than ten
pounds frequently; stand/walk for two hours and sit for six hours in an eighthour workday; occasionally climb ramps or stairs; occasionally balance, stoop,
kneel, crouch, and crawl; never climb ladders, ropes, or scaffolds; avoid
concentrated exposure to extreme cold or heat and hazards such as unprotected
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heights; and must work in an environment that is not stringently performance or
quota-based. (R. 21). The ALJ opined that Plaintiff retained the RFC to perform
her past work as an attorney as it was actually performed. (R. 28). The ALJ
concluded by finding that Plaintiff was not under a disability. (R. 29).
VI. Issues
Plaintiff has essentially raised three issues. The issues are as follows:
1. Whether Plaintiff’s immune deficiency disorder meets or substantially
equals Listing 14.07A or 14.07C.
2. Whether the ALJ’s RFC assessment took into consideration all of
Plaintiff’s limitations.
3. Whether the ALJ mischaracterized the VE’s testimony.
Issue 1:
Whether Plaintiff’s immune deficiency disorder meets or
substantially equals Listing 14.07A or 14.07C.
In this case, Plaintiff first argues that the ALJ erred in finding that her
immune deficiency disorder did not meet or substantially equal Listing 14.07.
Plaintiff claims that her immune deficiency disorder does, in fact, meet either
Listing 14.07A or 14.07C, which provide as follows:
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
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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. 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. In order for an
individual to be disabled under a particular listing, the impairment must meet
each distinct element within the listing. Rice v. Barnhart, 384 F.3d 363, 369
(7th Cir. 2004). And, it is important to remember that at step three, the burden
rests on Plaintiff to demonstrate that she meets the listing.
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). The ALJ explained
that while Plaintiff underwent intravenous treatment (the IVIG therapy), the
treatment was not actually for sinusitis, but it was for the immune deficiency
disorder instead. Furthermore, the ALJ determined that Plaintiff could not
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satisfy Listing 14.07A because there were no imaging studies documenting
Plaintiff’s sinusitis. (R. 19).
Listing 14.07A does require a showing of immune deficiency disorder
coupled with one of six specific types of infections. According to Listing
14.00A(3), an immune deficiency disorder is “characterized by recurrent or
unusual infections that respond poorly to treatment, and are often associated
with complications affecting other parts of the body. Immune deficiency
disorders are classified as either primary (congenital) or acquired. Individuals
with immune deficiency disorders also have an increased risk of malignancies
and of having autoimmune disorders.” The record in this case clearly reflects
that Plaintiff suffered from an immune deficiency disorder. On March 6, 2007,
Dr. McLaughlin noted that on two occasions Plaintiff’s immunoglobulins had not
responded to immunization, and Dr. McLaughlin diagnosed specific antibody
deficiency. (R. 203). While Plaintiff’s immune deficiency disorder was not
actually diagnosed until March 6, 2007, Dr. McLaughlin suspected an immune
deficiency disorder at least as early as January 3, 2007, and indicated that the
testing done which had confirmed the immune deficiency diagnosis had partially
occurred even before that. (R. 199-200, 203).
In addition to the presence of an immune deficiency disorder, 14.07A
requires documentation of one of six specific types of infections. One such
infection which meets Listing 14.07A is “sinusitis documented by appropriate
medically acceptable imaging.” The record reflects that, at least as late as
February 2007, Plaintiff has displayed symptoms of a sinus infection. (R. 201).
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Dr. McLaughlin later explained that she had repeatedly treated Plaintiff for
chronic sinusitis. (R. 333). Consequently, there does not appear to be any
dispute that Plaintiff suffered from sinusitis. The ALJ did, however, note “that
the record does not contain any imaging studies documenting the claimant’s
sinusitis.” (R. 19). While the ALJ was technically correct, 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.” If the only obstacle to a finding that Plaintiff met Listing
14.07A was a lack of imaging 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. Plaintiff has indicated that such
imaging study records do, in fact, exist. (Plaintiff’s Brief in Support of Complaint
at 14 n.5).
Once an individual has demonstrated an immune deficiency disorder and
one of the six listed infections, she can meet Listing 14.07 by demonstrating: (1)
that the infection is “resistant to treatment;” (2) that the infection required
hospitalization; or (3) that the infection required intravenous treatment three or
more times in a 12-month period. In this case, there has been no evidence
presented indicating that Plaintiff was hospitalized. Therefore, she must
demonstrate that her sinusitis was either “resistant to treatment” or required a
sufficient number of intravenous treatments. An infection is “resistant to
treatment” if it did not respond adequately to an appropriate course of
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treatment.2 20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 14.00C(11). In
recounting Plaintiff’s course of treatment in a letter from October 2009, Dr.
McLaughlin noted that Plaintiff suffered from chronic sinusitis which was very
difficult to treat with multiple courses of antibiotics and other sinus medications
until Plaintiff started IVIG. (R. 335). And, in fact, in March 2007, Dr.
McLaughlin opined that Plaintiff should begin IVIG therapy to try to better
control her chronic sinus infections which had not responded to other treatment.
(R. 203). While Plaintiff’s sinusitis does appear to have ultimately responded to
the IVIG therapy, the record reveals that those treatments3 must occur once
every four weeks, because the body metabolizes the immunoglobulins, and are
going to continue indefinitely.
It, therefore, appears that, as of February 2007, Plaintiff suffered from
chronic sinusitis that was resistant to treatment, that was still actively
recurring, and that was coupled with an immune deficiency disorder. As of that
time, Plaintiff could have been found to have met Listing 14.07A. However, the
ALJ focused on the fact that Plaintiff had alleged an onset date of January 1,
2008, and concluded that Plaintiff did not meet Listing 14.07A in part because
there were no more instances of active sinusitis after the alleged onset date.
Listing 14.00C(11) explains that “[w]hether a response is adequate or a course
of treatment is appropriate will depend on the specific disease or condition you have,
the body system affected, the usual course of the disorder and its treatment, and the
other facts of your particular case.”
2
They are quite expensive as well. There is some evidence that the cost of these
treatments costs over $41,000 per year.
3
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This Court is then faced with the issue of what effect the Plaintiff’s
selection of an “onset date” has upon the ALJ’s disability decision under the
listing. On one hand, an alleged onset date only affects when an individual can
begin receiving DIB. Plaintiff cannot be paid any benefits prior to January 1,
2008, because she received too much money in 2007 to qualify for benefits and,
therefore, engaged in substantial gainful activity during the period. On the other
hand, the ALJ still must look at medical evidence prior to the alleged onset date
if such medical evidence supports a finding of disability.4 The Seventh Circuit
has explained that an ALJ is obligated to consider all of the relevant medical
evidence and may not cherry-pick facts to support his decision of non-disability
while ignoring relevant evidence that points to a finding of disability. Myles v.
Astrue, 582 F.3d 672, 678 (7th Cir. 2009).
This Court notes that Listing 14.07 only requires an immune deficiency
disorder and an infection that is “resistant to treatment.” Some of the other
immune deficiency listings actually require that the specific impairment be
“persistent” or “recurrent.” In fact, the Commissioner specifically defined
“recurrent” for all immune deficiency disorders to mean “a condition that
previously responded adequately to an appropriate course of treatment returns
after a period of remission or regression.” 20 C.F.R. Part 404, Subpart P,
Appendix 1, Listing 14.00C(10). Yet, there is no requirement in Listing 14.07A
42 U.S.C. § 423(d)(5)(B) explains that “[i]n making any determination with
respect to whether an individual is under a disability . . . the Commissioner of Social
Security shall consider all evidence available in such individual’s case record . . . .”
4
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that the infection associated with the immune deficiency disorder must be
“recurrent.” Thus, it is not necessary for Plaintiff to establish “recurrence” under
this specific listing. This is in accord with the Social Security regulations which
provide that “[t]he Listing of Impairments (the listings) . . . describes for each of
the major body systems impairments that we consider to be severe enough to
prevent an individual from doing any gainful activity, regardless of his or her
age, education, or work experience.” 20 C.F.R. § 404.1525(a). The permanence
of a disability is reflected in the explanation that “[m]ost of the listed
impairments are permanent or expected to result in death. For some listings, we
state a specific period of time for which your impairment(s) will meet the listing.
For all others, the evidence must show that your impairment(s) has lasted or can
be expected to last for a continuous period of at least 12 months.” Id. §
404.1525(b)(4). There is no doubt that Plaintiff’s immune deficiency disorder
(specific antibody deficiency) is permanent; all of the medical evidence of record
reflects that it is. The question, then, is: Must the actual infection which is
resistant to treatment and is associated with the immune deficiency disorder
have to last or be expected to last for a continuous period of at least 12 months?
In examining the six listed types of infections, the answer surely must be “no.”
At least three of the listed infections (pneumonia, endocarditis, and meningitis)
are extremely serious infections that could seldom last or be expected to last for
a continuous 12-month period.
Therefore, this Magistrate Judge’s reading of Listing 14.07A is that once
an individual: (a) has an immune deficiency disorder that is permanent; (b) the
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immune deficiency disorder is coupled with one of the six listed infections; and
(c) the infection is resistant to treatment, then an individual meets that
particular listing and does not have to demonstrate that active bouts of
meningitis, or sepsis, or endocarditis (or, in this case, sinusitis) themselves last
for 12 months.
This Magistrate Judge concludes that Plaintiff appears to meet Listing
14.07A because her immune deficiency disorder and sinusitis requires
intravenous treatment more than three times a year. On remand, the ALJ must
confirm that there is evidence of appropriate medical imaging to support a
diagnosis of sinusitis.
Issue 2:
Whether the ALJ’s RFC assessment took into consideration all
of Plaintiff’s limitations.
Plaintiff next raises the issue of whether the ALJ’s RFC assessment should
have taken into consideration her need to miss work. Plaintiff’s testimony and
all of the objective medical evidence reflects that Plaintiff’s IVIG treatment was
medically necessary, and it would cause Plaintiff to miss work 13 days a year for
the actual treatment sessions. Plaintiff also testified that she was extremely
fatigued on the day after the treatment sessions and would be unable to work on
those days as well, which is also consistent with the medical evidence and the
literature concerning IVIG treatment. The ALJ, however, did not include the
need to miss any work days in his RFC finding. If, on remand, Plaintiff’s
impairment is found not to meet or substantially equal Listing 14.07A, the ALJ
will still be required to re-evaluate steps four and five of the five-step sequential
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evaluation process. During these steps, the ALJ must include in any
hypothetical question to the VE the need to miss at least 13 days of work, and
more likely 26 days, unless substantial medical evidence in the record exists
showing that those missed days of work for IVIG treatment are not medically
necessary.
Issue 3:
Whether the ALJ mischaracterized the VE’s testimony.
Finally, Plaintiff alleges the ALJ erred by not accurately describing the
VE’s testimony concerning whether Plaintiff could perform her past work as she
actually performed it. Pursuant to SSR 82-61, the ALJ found that Plaintiff was
not disabled because she retained the RFC 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 RFC 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).
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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. On remand, if the ALJ proceeds to step
four of the five-step sequential evaluation process, the ALJ must provide a
complete hypothetical question to the VE that includes all of Plaintiffs
limitations, and the ALJ must elicit a response from the VE that indicates
whether Plaintiff can perform her past work as it was actually performed.
VII. Conclusion
The ALJ’s decision must be remanded. The objective medical evidence
reveals that Plaintiff’s immune deficiency disorder with sinusitis is resistant to
treatment and requires 13 IVIG treatment sessions every year. The Magistrate
Judge concludes that Listing 14.07A is likely to be met so long as Plaintiff’s
sinusitis can be categorized as resistant to treatment even before the alleged
onset date of January 1, 2008. The ALJ must re-contact Plaintiff’s treating
physician to determine if there are imaging studies that support a diagnosis of
sinusitis. Additionally, if the ALJ determines that Plaintiff does not meet Listing
14.07A because no medical imaging exists, then the ALJ still must proceed to
steps four and five of the five-step sequential evaluation process and must
include Plaintiff’s need for 13 to 26 missed days of work in Plaintiff’s RFC. The
ALJ must then determine whether Plaintiff can perform her past work as she
actually performed it given her limited RFC.
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The final decision of the Commissioner is, therefore, REMANDED.
SO ORDERED the 17th day of July, 2012.
__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana
Electronic copies to:
Steve Barber
BARBER & BAUER, LLP
steve@barlegal.net
Thomas E. Kieper
UNITED STATES ATTORNEY’S OFFICE
tom.kieper@usdoj.gov
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