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Sell v. Colvin

United States District Court, E.D. Tennessee, Greeneville Division

March 23, 2015

CAROL A. SELL,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security

REPORT AND RECOMMENDATION

DENNIS H. INMAN, Magistrate Judge.

This matter is before the United States Magistrate Judge, under the standing orders of the Court and 28 U.S.C. ยง 636 for a report and recommendation. The plaintiff's disability insurance benefits were administratively terminated effective October 1, 2008, after the defendant Commissioner determined that medical improvement had occurred to the extent that plaintiff was now capable of substantial gainful activity. The plaintiff has filed a Motion for Judgment on the Pleadings [Doc. 14], while the defendant Commissioner has filed a Motion for Summary Judgment [Doc. 23].

The sole function of this Court in making this review is to determine whether the findings of the Commissioner are supported by substantial evidence in the record. McCormick v. Secretary of Health and Human Services, 861 F.2d 998, 1001 (6th Cir. 1988). "Substantial evidence" is defined as evidence that a reasonable mind might accept as adequate to support the challenged conclusion. Richardson v. Perales, 402 U.S. 389 (1971). It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn is one of fact for the jury. Consolo v. Federal Maritime Commission, 383 U.S. 607 (1966). The Court may not try the case de novo nor resolve conflicts in the evidence, nor decide questions of credibility. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Even if the reviewing court were to resolve the factual issues differently, the Commissioner's decision must stand if supported by substantial evidence. Liestenbee v. Secretary of Health and Human Services, 846 F.2d 345, 349 (6th Cir. 1988). Yet, even if supported by substantial evidence, "a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right." Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007).

In July of 1996, the plaintiff applied for disability insurance benefits. On July 7, 1997, an ALJ found that the plaintiff was disabled as of May 1, 1996, and was entitled to benefits. (Tr. 203-210). From time to time, the Social Security Administrations conducts "continuing disability reviews" to determine if an individual receiving benefits has experienced medical improvement related to their ability to engage in substantial gainful activity, which would result in a cessation of benefits. The first such review of the plaintiff's condition occurred in March of 2002, and it was found that she had the Residual Functional Capacity ["RFC"] to perform less than a significant range of sedentary work and was still disabled. Another such review was conducted in October, 2008. It resulted in a determination that the plaintiff had experienced medical improvement and that her disability had ceased.

The plaintiff requested and received a hearing before the present ALJ, which was held on October 29, 2010. He determined that she had in fact experienced medical improvement and was no longer disabled (Tr. 639-647). Plaintiff appealed that decision to Appeals Council. While the determination that she was no longer entitled to disability insurance benefits was being considered by the Appeals Council, plaintiff filed an application for supplemental security income in January, 2011.

In January 2012, the Appeals Council remanded the case to the ALJ to determine whether plaintiff was disabled through the date of the ALJ's final decision. This was to ensure that even if she had experienced medical improvement in the impairments which initially led to her originally being found disabled in 1996, there were no other severe impairments present which would render her disabled in the present. The Appeals Council also ordered that the disability insurance and supplemental security income claims be consolidated for ultimate determination by the ALJ. (Tr. 1033-34). To that end, another administrative hearing was held. The ALJ then entered one hearing decision regarding her disability insurance claim and a separate claim regarding her application for supplemental security income, finding that her disability ceased in October, 2008, and that she was still not disabled through the dates of those decisions. These became the final decision of the Commissioner and are the subject of this judicial appeal.

In the original hearing decision which found the plaintiff to be disabled as of May 1, 1996, the ALJ found that the plaintiff suffered from a severe gastrointestinal impairment "which precludes her from performing any substantial gainful activity, even at the secondary level, on a regular and sustained basis." (Tr. 207). He so found because "the claimant has received aggressive treatment for gastrointestinal symptoms since May, 1996, when she required hospitalization for dehydration, irritable bowel syndrome, and diarrhea. In June, 1996, she had insertion of double lumen port-a-cath to self administer IV fluids on a weekly basis or more often. Endoscopy shows active gastritis and Helicobacter pylori infection." She was under the care of medical specialists for the condition. One provider noted that the plaintiff had "lost weight at each M.D. appointment, " and experienced severe continuing diarrhea. (Tr. 201). She received was receiving daily injections of Phenagrin, with Darvacet every 6 hours for the pain. (Tr. 202).

The original ALJ stated that he recommended "reevaluation of her status...to determine if the claimant has experienced medical improvement and can return to substantial gainful activity." Because, at the time of the decision she could not "tolerate a standard work day on a regular basis, " he found that she was entitled to a period of disability benefits. (Tr. 208-210).

Plaintiff's lengthy medical history is summarized in the Commissioner's brief as follows:

During 1996 and 1997, Plaintiff was aggressively treated for h-pylori infection and IBS (Tr. 131-32, 154-625, 181, 206-10). In May 1996, Plaintiff was hospitalized for dehydration, IBS, and diarrhea (Tr. 167-69, 267). In June 1996, Plaintiff had a catheter placed for self administration of IV fluids on a weekly basis (Tr. 122, 148-50, 170, 267). An endoscopy showed active gastritis and h-pylori infection (Tr. 267). In July 1997, Plaintiff's physician noted that she had severe diarrhea and dehydration and required daily Phenergan injections and Darvocet every few hours (Tr. 202). Another physician reported that Plaintiff required twice weekly IV therapy and frequent injections for nausea (Tr. 181). In July 1997, an ALJ found Plaintiff was disabled as of July 1996, due to severe gastrointestinal impairments, gastritis, and h-pylori infection (Tr. 206-10).
During 2000, Plaintiff saw nurse practitioners at the Johnson City Downtown Clinic for chronic abdominal pain, pancreatitis, and pernicious anemia, regularly requesting medication refills (Tr. 429-37). Plaintiff also reported a number of trips to the emergency room (Tr. 429, 433). In May 2000, Plaintiff went to the emergency room complaining of nausea, vomiting, and headache (Tr. 475). She was given medication and IV hydration (Tr. 476). In June 2000, she went to the emergency room for pneumonia (Tr. 473-74). In September 2000, she went to the emergency room complaining of vomiting and abdominal pain (Tr. 471). Plaintiff was given medication and told to drink plenty of fluids (Tr. 472). In October 2000, she went to the emergency room complaining of diarrhea and requesting IV hydration (Tr. 469). A doctor told Plaintiff she would not benefit from IV hydration and recommended that she drink plenty of fluids and follow up with her primary care physician (Tr. 469).
Plaintiff continued to see nurse practitioners at the Johnson City Downtown Clinic during 2001(Tr. 419-27). In May 2001, Plaintiff went to the clinic for medication refills, reporting that she was doing "reasonably well" but still needed to take Phenergan twice a day (Tr. 423). The nurse noted that Plaintiff had increased her smoking (Tr. 423). Plaintiff returned to the clinic in August 2001, complaining of nausea and requesting pain medication (Tr. 421). The nurse instructed Plaintiff on proper use of medication (Tr. 421-22). Plaintiff was back at the clinic in November 2001, requesting pain medication (Tr. 420). A nurse provided pain medication and instructed Plaintiff to continue B12 injections (Tr. 420).
Plaintiff also reported several hospitalizations during 2001 (Tr. 419). Plaintiff went to the emergency room in March 2001 complaining of nausea and vomiting, as well as stress due to her brother's recent death (Tr. 465-66). She was hospitalized in October 2001 for abdominal pain and atypical chest pain (Tr. 419, 61). A continuing disability review on March 25, 2002, found that Plaintiff continued to meet the standards for social security disability (Tr. 223-26).
In December 2002, Plaintiff began seeing William Kincaid, M.D., and Kelley Mayden, F.N.P., at the McLeod Cancer and Blood Center for blood work and B12 injections (Tr. 742-49). Plaintiff first saw Dr. Kincaid on December 6, 2002, complaining of anemia (Tr. 750-53). Findings upon physical examination were unremarkable; Plaintiff had normal gait, station, and range of motion, and a chest x-ray was normal (Tr. 751, 839). Dr. Kincaid noted that Plaintiff's anemia was corrected (Tr. 751). Laboratory testing showed h-pylori antibody and high levels of B12 (Tr. 824, 826-27). Plaintiff saw Ms. Mayden at the Blood Center in January 2003 for a bone marrow aspiration and biopsy (Tr. 748). A pathology report showed macrocytic erythrocytes but was otherwise unremarkable (Tr. 807-08). In February 2003, clinicians observed that Plaintiff was asymptomatic (Tr. 747). Diagnoses included B12 deficiency, macrocytosis, intermittent nausea and vomiting, ill-defined eating disorder, abdominal pain, hypertension, and pancreatitis (Tr. 742). Dr. Kincaid noted that Plaintiff continued to smoke one to two packages of cigarettes a day (Tr. 743, 746). Ms. Mayden cautioned Plaintiff against use of a tanning bed and excessive sun exposure (Tr. 745). Plaintiff saw Dr. Kincaid in October 2013, complaining of a red spot on her right heel after hiking (Tr. 741). Dr. Kincaid continued Plaintiff on B12 and urged her to stop smoking (Tr. 741).
In January 2004, Plaintiff asked Ms. Mayden for pain medication (Tr. 738). The nurse refused, explaining that she was unable to prescribe narcotics while Plaintiff was under the care of another physician who prescribed narcotics (Tr. 738). An abdominal ultrasound and chest x-rays in April 2004 were normal (Tr. 837-88). A computed tomography (CT) scan of Plaintiff's abdomen showed mild hepatomegaly and biliary duct dilation (Tr. 835). Testing was positive for opiates (Tr. 796).
Later that month, Plaintiff complained to Dr. Kincaid of episodic nausea and vomiting (Tr. 736). Dr. Kincaid noted recent abnormal liver function tests, which he thought were related to Plaintiff's use of pain medication (Tr. 736). Dr. Kincaid again encouraged Plaintiff to stop smoking and referred her to another physician (Tr. 737). Plaintiff saw Dr. Kincaid again in October 2004, complaining of B12 deficiency and fatigue (Tr. 735). Blood work was normal other than an elevated mean corpuscular value (MCV) (Tr. 735).
Plaintiff saw Ms. Mayden in January 2005, complaining of intermittent nausea and chronic fatigue (Tr. 733-34). Plaintiff's weight was 131 (Tr. 733). Ms. Mayden provided Prevacid and Phenergan (Tr. 734). She noted that Plaintiff had many risk factors for osteoporosis including poor nutrition, smoking, and multiple carbonated beverages each day; she ordered a bone densitometry (Tr. 734). In April 2005, Plaintiff returned to the Blood Center, two months overdue for her monthly B12 injection (Tr. 730). Plaintiff was out of B12 and had not called in to get more (Tr. 730). She complained of vomiting, nausea, and abdominal pain, attributing this to the fact that she had recently left her husband and was going through a divorce (Tr. 730). Plaintiff reported that she had been taking Lortab and Percocet but was still having difficulty with pain (Tr. 730). Ms. Mayden diagnosed B12 deficiency, situational anxiety, chronic nonmalignant pain, history of pancreatitis, history of h-pylori, chronic nausea, and osteopenia (Tr. 731). She provided a B12 injection and Ativan for anxiety and nausea (Tr. 731). Ms. Mayden renewed Plaintiff's prescription for Lortab and provided additional injectable pain medication at Plaintiff's request, advising Plaintiff to use it sparingly (Tr. 732).
Plaintiff went to North Side Hospital in Johnson City, Tennessee, on January 5, 2007, complaining of anxiety and shortness of breath (Tr. 544, 548). Upon admission, she was noted to be "hysterical" with high blood pressure (Tr. 544). She was diagnosed with allergic reaction and given medications, including Medrol (Tr. 545). A CT of Plaintiff's abdomen ...

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