Pompili v. Social Security
Filing
26
Memorandum Opinion and Order reversing the decision of the Commissioner and remanding the Case with further instruction. Magistrate Judge Vernelis K. Armstrong on 9/1/11. (B,CJ)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Sandra M. Pompili,
:
Plaintiff,
v.
Case No. 1:10-CV-1460
:
:
Commissioner of Social Security,
:
Defendant.
MEMORANDUM DECISION AND
ORDER
:
Plaintiff seeks judicial review, pursuant to 42 U. S. C. § 405(g), of Defendant's final
determination denying her claim for Disability Insurance Benefits (DIB) under Title II of the
Social Security Act (Act). Pending are the parties’ Briefs on the Merits (Docket Nos. 18 & 25).
For the reasons that follow, the Commissioner’s decision is reversed and the case is remanded
pursuant to sentence four of 42 U. S. C. § 405(g).
I. PROCEDURAL BACKGROUND.
On February 2, 2002, Plaintiff filed an application for DIB alleging that she became
unable to work on October 29, 2001, because of her disabling condition (Tr. 743). On February
15, 2002, the state agency determined she was disabled as of October 29, 2001, based on meeting
the listing for hematological disorders at 20 C.F.R. Part 404, Subpart P, Appendix 1, § 7.11 (Tr.
19, 743). Following a Continuing Disability Review (CDR) by the agency, Plaintiff was notified
that her health had improved and her other conditions were not of the severity that would prevent
her from working effective July 2004 (Tr. 700-702; 729-730).
On August 22, 2004, Plaintiff requested reconsideration of the cessation of disability (Tr.
691). On April 20, 2005, Plaintiff attended a disability hearing before Ernesta Moody, a hearing
officer (Tr. 363-373). The request for consideration was denied on July 29, 2005 (Tr. 350-351).
Plaintiff then requested a hearing before an Administrative Law Judge (ALJ). On February 5,
2008, Administrative Law Judge (ALJ) Robert M. Senander held a hearing at which Plaintiff
appeared, waived her right to have representation and chose to proceed with the hearing (Tr. 745,
747-751). On June 17, 2008, the ALJ issued an unfavorable decision (Tr. 14-22). On April 26,
2010, the Appeals Council denied Plaintiff’s request for review, rendering the ALJ’s decision the
final decision of the Commissioner (Tr. 2-4). Plaintiff filed a timely complaint in this Court
seeking judicial review (Docket No. 1).
II. FACTUAL BACKGROUND
At the time of the hearing, Plaintiff was 36 years of age, 5'2" tall and weighed
approximately 119 pounds. A right-handed person, Plaintiff resided in a house with her minor
daughter for whom she filed an application for child’s insurance benefits on April 11, 2002 (Tr.
735-736). Plaintiff’s divorce was pending. She drove but had difficulty seeing at night (Tr. 755756).
A number of years after completing high school, Plaintiff updated her computer skills at
the Townsend Learning Center, an educational and vocational rehabilitation facility and
underwent vocational rehabilitation through the Bureau of Service for the Visually Impaired in
2006 (Tr. 755-756; www.townsendlearningcenter).
In 1999, Plaintiff worked as an escrow analyst at a bank. There she lifted only as much
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as one ream of paper or less than ten pounds (Tr. 760). She subsequently worked at Walgreens
as a Hallmark® card coordinator and cash register clerk. In the capacity of clerk, she operated
the register and lifted up to ten pounds. These two jobs were from July 2000 to November 2001.
Plaintiff worked at Walgreens a short time in 2003 as a cash register clerk (Tr. 757-759).
Plaintiff had chemotherapy and a bone marrow transplant on March 6, 2002, due to acute
myelogenous leukemia (Tr. 760-761). She was in remission without evidence of recurrent
disease since that time. However, she had bouts of chronic graft-versus-host skin disease
(GVHD) (a complication that occurs after bone marrow transplant in which newly transplanted
material attacks the transplant recipient’s body) (Tr. 761-763; www.ncbi.nlm.nih.gov). In June
2002 she was hospitalized for rashes and open sores arising from the GVHD for which she was
put on Prednisone. The side effects of this medication lasted for several months (Tr. 761-762).
She and her physician were searching for triggers to the symptoms while adjusting the dosage of
medication to find her baseline (Tr. 763, 769).
Plaintiff had vision acuity problems arising from the disease. Specifically, she formed
cataracts and had chronic dry eye requiring daily usage of drops (Tr. 764). These problems
evolved in to eye sensitivity and difficulty reading or using the computer (Tr. 765). She noticed
this problem during vocational rehabilitation when she was unable to take the typing tests because
her eyes would not focus (Tr. 766).
Plaintiff did not do laundry primarily because it was difficult for her to go up and down
the stairs. She did make school lunches for her daughter. She did not vacuum. She could not
work around people due to the immune suppressants she was taking. She would need to sit at any
job most of the time. The Prednisone caused her hands to shake and to become inflamed several
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times per month (Tr. 769-775).
III. MEDICAL EVIDENCE.
Plaintiff was admitted to the Cleveland Clinic on October 30 and discharged on December
12, 2001.
Diagnosed with acute myelogenous leukemia, Plaintiff underwent induction
chemotherapy, a first line treatment for cancer in which high doses of chemotherapy are given
(Tr. 669-679).
On October 31, 2001, Dr. Moulay Meziane discovered a 6 cm. mass in the posterior
aspect of the left hilum extending to the region of the superior segment of the left lower lobe (Tr.
647). The unenhanced computed tomographic (CT) brain scan administered on November 3,
2001, showed normal attenuation and morphology (Tr. 643).
On November 6, 2001, Plaintiff underwent an ultrasound to ascertain the source of edema
in the lower extremities. Generally, Plaintiff’s veins were open and flowing without evidence of
deep venous thrombosis (Tr. 642).
On November 7, 2001, cultures from twenty of Plaintiff’s cells were analyzed for
chromosome abnormalities. It was determined that all twenty cells comprised an abnormal clone
characterized by having three copies (trisomy) of chromosome eight (Tr. 648).
On November 26, 2001, Plaintiff underwent several diagnostic tests including a renal
biopsy and CT scans of the chest and abdomen.
On December 6, 2001, Plaintiff underwent a retroperitoneoscopic renal biopsy to assess
whether there was malignant infiltration of the right kidney. The wedge taken from the lower
pole of the right kidney showed no sign of malignancy (Tr. 680-682).
On December 19, 2001, Plaintiff underwent a follow-up visit with the oncology unit at
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the Cleveland Clinic for acute myeloid leukemia with a trisomy-8 abnormality. Dr. Ronald
Sobecks, M. D., a hematologic oncologist, determined that after undergoing induction
chemotherapy, Plaintiff was clinically stable and asymptomatic. She was in complete remission
(Tr. 677-678). However, her kidneys were enlarged (Tr. 637).
On November 20, 2001, there was evidence from the CT scan of the chest that there was
improvement in the focal mass. This connoted improvement of infection or neoplasia (Tr. 636).
The results from the echocardiogram administered on January 17, 2002 showed a normal
left ventricle and right ventricle in both size and function, no valvular abnormalities and small
pericardial effusion (Tr. 662).
Plaintiff was admitted to the hospital on January 17 and discharged on January 29, 2002.
There she underwent a left thoracotomy and resection of the left hilar mass. A chest X-ray
revealed a left lung collapse and hemoglobin build up in her blood. The results from the test
measuring her breath were normal (Tr. 598, 650-654).
On February 26, 2002, Plaintiff was admitted to the Cleveland Clinic for induction
chemotherapy. She was discharged on April 1, 2002 (Tr. 584-586).
On April 29, 2002, Dr. Sobecks noted that Plaintiff had been without evidence of
residual/recurrent leukemia on her most recent bone marrow examination from April 22, 2002.
He prescribed medication for nausea (Tr. 577).
On May 3, 2002, Plaintiff was diagnosed with a heart rate disorder (Tr. 573).
In June 2002, Plaintiff was hospitalized for two weeks to manage the GVHD in the
gastrointestinal tract. Dr. Steven Anderson noted that Plaintiff was depressed; he referred her to
the psychiatric department (Tr. 560).
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On August 5, 2002, Dr. Sobecks noted that Plaintiff’s mild erythema over the palms and
soles of her feet was resolved to the extent that she required fewer analgesics (Tr. 523). On
August 19, 2002, Plaintiff was progressing so well that Dr. Sobecks reduced the dosage of
Prednisone (Tr. 549).
Dr. Sobecks observed on January 6, 2003, that Plaintiff had been without evidence of
recurrent leukemia for 305 days. There was no evidence of GVHD either (Tr. 473).
Plaintiff was treated at Cleveland Clinic beginning on February 5, 2003 for GVHD.
While there, Dr. Brian J. Bolwell, M. D., administered intravenous hydration in addition to drug
therapy (Tr. 462-464).
On February 6, 2003, Dr. Steven S. Shay concluded that based on specimens submitted
from the duodenum biopsy and stomach biopsy that Plaintiff had GVHD (Tr. 603). In addition,
Dr. Shay found evidence of mild acute gastritis and mild inflammation of the duodenum (Tr.
528).
On May 2, 2003, the chest examination revealed minimal cardiomegaly, no evidence of
infiltrate or edema (Tr. 514).
Dr. Sobecks continued to “taper” Plaintiff’s Prednisone as her difficulty swallowing had
resolved on June 6, 2003 (Tr. 516).
Plaintiff underwent a series of psychotherapy sessions with a licensed social worker, Jane
M. Dabney, at the Cleveland Clinic Foundation. During all sessions, Plaintiff addressed personal
stressors including her marital relationship and other family stressors. At each session, Plaintiff
reported compliance with her drug therapy and treatment (Tr. 432, 438, 440).
On October 10, 2003, Plaintiff underwent non-chemotherapy treatment over the course of
three and one half hours. She tolerated the procedure well. Dr. Sobecks noted that Plaintiff’s was
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without evidence of recurrent GVHD (Tr. 425-428)
On January 23, 2004, Plaintiff underwent non-chemotherapy treatment over the course of
three and one half hours. She tolerated the procedure well (Tr. 414-416).
Dr. Careen Lowder, M. D., opined that Plaintiff’s ocular pathology responsible for her
impaired vision was attributed to Plaintiff’s inflammation and possible steroid administration (Tr.
383-385).
On July 17, 2004, Dr. Louis Barnes, M. D., conducted a case analysis and opined that there
had been medical improvement. A non severe rating was appropriate (Tr. 381).
In September 2004, Plaintiff reported that she had been prescribed a lubricant for chronic
dry eyes. Apparently her prior ulcerations had resolved. Dr. Sobecks increased the dosage of
Prednisone to address patches of red skin in her armpits, medial thighs and over her feet (Tr. 387).
Results from an echocardiogram administered on June 19, 2006, showed a normal sinus
rhythm. Plaintiff was diagnosed with benign hypertension which was stabilized on medication
(Tr. 267, 282). Plaintiff’s blood counts were adequate and she was still in remission without
evidence of recurrent disease. Her chronic GVHD of the skin had improved and remained stable
(Tr. 69).
On August 1, 2006, Plaintiff was diagnosed with post menopausal and steroid
induced low bone mineral density. The prescription for treatment included calcium accompanied
by vitamin D and exercise (Tr. 59-60).
Plaintiff had been diagnosed with chronic periodontal disease, dental caries (decay) and
retained dental roots. In October 2006, Plaintiff underwent an extraction of 24 teeth (Tr. 83-84).
In June 2007, Plaintiff reported to Dr. Careen Y. Lowder, M. D., an ophthalmologist, that
Plaintiff’s dry eye disease had responded well to treatment (Tr. 290).
Diagnosed with autoimmune hemolytic anemia, Plaintiff underwent a red blood cell
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transfusion on December 1, 2007. Her hemoglobin levels were elevated to an appropriate level
and her lactate dehydrogenase, an enzyme that facilitates the conversion of glucose to usable
energy for cells, was increased to an appropriate level (Tr. 316).
On December 17, 2007, Dr. Sobecks noted that Plaintiff remained in remission without
evidence of recurrent disease since March 6, 2002. Additionally, the chronic GVHD of her skin
had been well controlled with medication created specifically to prevent transplant rejection (Tr.
320).
On January 17, 2008, Dr. Sobecks treated Plaintiff for bilateral lower extremity edema.
She continued, however, to show no evidence of recurrent disease since March 6, 2002 (Tr. 198).
The chest X-ray taken on April 4, 2008 showed no evidence of active disease in the lungs
or mediastinum or other significant change since the examination on February 25, 2008 (Tr. 260).
IV. THE STANDARD FOR CONTINUING DISABILITY REVIEW.
There is a statutory requirement that, if a claimant is entitled to disability benefits, his or
her continued entitlement to such benefits must be reviewed periodically. 20 C. F. R. §
404.1594(a) (Thomson Reuters 2011). Benefits may only be terminated if substantial evidence
demonstrates that there has been medical improvement in the individual’s impairment and the
individual cannot engage in substantial gainful activity. 42 U. S. C. § 423 (f) (Thomson Reuters
2011). Medical improvement is any decrease in the medical severity of a claimant’s impairment
which was present at the time of the most recent favorable medical decision that you were
disabled or continued to be disabled. 20 C. F. R. § 404.1594 (b) (1) (Thomson Reuters 2011).
A determination that there has been a decrease in medical severity must be based on changes
(improvement) in the symptoms, signs and/or laboratory findings associated with your
impairment(s) (see § 404.1528). 20 C. F. R. § 404.1594 (b) (1) (Thomson Reuters 2011).
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In order to insure that these statutory mandates are enforced, 20 C.F.R. § 404.1594(f)
prescribed eight evaluation steps to be used in termination cases. The eight steps are: (1)
whether the claimant is currently engaging in substantial gainful activity, (2) if not, whether the
disability continues because the claimant's impairments meet or equal the severity of a listed
impairment, (3) whether there has been a medical improvement, (4) if there has been medical
improvement, whether it is related to the claimant's ability to work, (5) if there has been no
medical improvement or if the medical improvement is not related to the claimant's ability to
work, whether any exception to medical improvement applies, (6) if there is medical
improvement and it is shown to be related to the claimant's ability to work, whether all of the
claimant's current impairments in combination are severe, (7) if the current impairment or
combination of impairments is severe, whether the claimant has the residual functional capacity
to perform any of his/her past relevant work activity, and (8) if the claimant is unable to do work
performed in the past, whether the claimant can perform other work. 20 C.F.R. § 404.1594(f)
(Thomson Reuters 2011). A denial of benefits pursuant to this process is reviewed for substantial
evidence to support the ALJ’s decision.
V. THE ALJ’S FINDINGS.
Upon consideration of the evidence, the ALJ made the following findings:
1.
The most recent favorable medical decision finding that Plaintiff was disabled is
the determination dated February 15, 2002. This is known as the “comparison
point decision” or CPD.
2.
At the time of the CPD, Plaintiff had the following medically determinable
impairment: acute myelogenous leukemia. This impairment was found to meet
§§ 7.11 of 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. § 404.1520(d).
3.
Through July 31, 2004, the date Plaintiff’s disability ended, Plaintiff did not
engage in substantial gainful activity. 20 C.F.R. § 404.1594(f)(1).
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4.
The medical evidence established that, as of July 31, 2004, Plaintiff had the
following medically determinable impairments: leukemia in remission and bone
vs. graft disease.
5.
Since July 31, 2004, Plaintiff did not have an impairment or combination of
impairments which met or medically equaled the severity of an impairment listed
in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1525 and
404.1526.
6.
Medical improvement occurred as of July 31, 2004. 20 C.F.R. § 404.1594(b)(1).
7.
The medical improvement was related to the ability to work because, as of July
31, 2004, Plaintiff’s CPD impairment(s) no longer met or medically equaled the
same listing(s) that was met at the time of the CPD. 20 C.F.R. §
404.1594(c)(3)(i).
8.
As of July 31, 2004, Plaintiff continued to have a severe impairment or
combination of impairments. 20 C.F.R. § 404.1594(f)(6).
9.
Based on the impairments present as of July 31, 2004, Plaintiff had the residual
functional capacity to perform the full range of light work as defined in 20 C.F.R.
§ 404.1567(b).
10.
As of July 31, 2004, Plaintiff was unable to perform past relevant work. 20
C.F.R. § 404.1565.
11.
On July 31, 2004, Plaintiff was a younger individual age 18-49. 20 C.F.R. §
404.1563.
12.
Plaintiff had at least a high school education and was able to communicate in
English. 20 C.F.R. § 404.1564.
13.
Beginning on July 31, 2004, transferability of job skills was not material to the
determination of disability because applying the Medical-Vocational Rules
directly supports a finding of “not disabled,” whether or not Plaintiff had
transferable job skills. See SSR 82-41 and 20 C.F.R. Part 404, Subpart P,
Appendix 2.
14.
As of July 31, 2004, considering Plaintiff’s age, education, work experience, and
residual functional capacity based on the impairments present as of July 31, 2004,
Plaintiff was able to perform a significant number of jobs in the national economy.
20 C.F.R. §§ 404.1560(c) and 404.1566.
15.
Plaintiff’s disability ended as of July 31, 2004. 20 C.F.R. 404.1594(f)(8).
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(Tr. 18-21).
VI. STANDARD OF REVIEW.
Judicial review is limited in scope by 42 U.S.C. § 405(g) which authorizes the district
court to conduct review of the Commissioner’s final decision. McClanahan v. Commissioner of
Social Security, 474 F.3d 830, 832-833 (6th Cir. 2006). The court’s review is limited to
determining whether there is substantial evidence in the record to support the ALJ’s findings of
fact and whether the correct legal standards were applied. Elam ex rel. Golay v. Commissioner
of Social Security, 348 F.3d 124, 125 (6th Cir. 2003) (citing Key v. Callahan, 109 F.3d 270, 273
(6th Cir. 1997)). Under this standard, the court must affirm the Commissioner's conclusions
absent a determination that the Commissioner has failed to apply the correct legal standards or
has made findings of fact unsupported by substantial evidence in the record. Longworth v.
Commissioner Social Security Administration, 402 F.3d 591, 595 (6th Cir. 2005) (citing Warner
v. Commissioner of Social Security, 375 F.3d 387, 390 (6th Cir.2004) (quoting Walters v.
Commissioner of Social Security, 127 F.3d 525, 528 (6th Cir. 1997)). Substantial evidence is
defined as “more than a scintilla of evidence but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Rogers v.
Commissioner of Social Security, 486 F.3d 234, 241 (6th Cir. 2007).
In deciding whether to affirm the Commissioner's decision, it is not necessary that the
court agree with the Commissioner's finding, as long as it is substantially supported in the record.
Id. (citing Her v. Commissioner of Social Security, 203 F.3d 388, 389-90 (6th Cir. 1999)). The
substantial evidence standard is met if a “reasonable mind might accept the relevant evidence as
adequate to support a conclusion.” Longworth, supra, 402 F. 3d at 595 (citing Warner, supra,
375 F.3d at 390) (citing Kirk v. Secretary of Health & Human Services, 667 F.2d 524, 535 (6th
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Cir. 1981) cert. denied, 103 S. Ct. 2478 (1983) (internal quotation marks omitted)). If substantial
evidence supports the Commissioner's decision, this Court will defer to that finding “even if there
is substantial evidence in the record that would have supported an opposite conclusion.” Id.
(citing Warner, 375 F.3d at 390) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)).
VII. DISCUSSION.
At step seven of the evaluation, the ALJ found that Plaintiff had the residual functional
capacity for a full range of light work. Plaintiff argues that the ALJ’s finding that she is capable
of performing a full range of light work is not supported by substantial evidence. In fact, Plaintiff
argues that the ALJ failed to perform any analysis of medical evidence.
The ALJ is required to make a decision based on all of the evidence, including the
testimony adduced at the hearing. 20 C. F. R § 405.370(a)(Thomson Reuters 2011). The ALJ
is directed to prepare a written decision that explains in clear and understandable language the
specific reasons for the decision. 20 C. F. R § 405.370(a)(Thomson Reuters 2011).
During the hearing, in certain categories of claims that will be identified in advance, the
ALJ may orally explain in clear and understandable language the specific reasons for, and enter
into the record, a fully favorable decision. 20 C. F. R § 405.370(b)(Thomson Reuters 2011). The
ALJ is required to include in the record a document that sets forth the key data, findings of fact,
and narrative rationale for the decision. 20 C. F. R § 405.370(b)(Thomson Reuters 2011).
In this case, the ALJ set forth the standard for review under 20 C. F. R. § 404.1594 and
made the conclusory statement that Plaintiff’s condition improved. However, the Magistrate is
unable to conduct meaningful review of whether substantial evidence supports the ALJ’s
decision. The ALJ failed to articulate key data, make findings of fact or conduct a narrative
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rationale for a decision on any of the other steps that support a determination if a claimant’s
benefits continue. Accordingly, this case is remanded to the Commissioner, pursuant to sentence
four of 42 U. S. C. § 405(g), and the ALJ is directed to prepare a written decision that explains
in clear and understandable language the key facts, findings of facts, narrative rationale for the
decision as well as any other specific reasons for the decision.
VIII. CONCLUSION
For the foregoing reasons, the Commissioner’s decision is reversed and the case is
remanded to the Commissioner with instructions to: (1) conduct an appropriate analysis of
Plaintiff’s claim under the eight step procedure mandated for review of continuation of disability
benefits, (2) prepare a written decision that explains in clear and understandable language the key
facts, findings of facts, narrative rationale for the decision as well as any other specific reasons
for the decision and (3) determine based on the analysis, whether Plaintiff is under a disability.
IT IS SO ORDERED.
/s/ Vernelis K. Armstrong
United States Magistrate Judge
Date: July 29, 2011
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