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Carner v. Commissioner of Social Security

February 11, 2008




A. Procedural History

Plaintiff Janice C. Carner ("Plaintiff") filed an application for Disability Insurance Benefits ("DIB") on January 30, 2003. Administrative Transcript ("AT") 37-39 (Dkt. No. 3). The application was denied initially on May 2, 2003. AT 30-34. A request was made for a hearing. AT 35-36. A hearing was held before an Administrative Law Judge ("ALJ") on May 20, 2004. AT 129-41. In a decision dated September 10, 2004, the ALJ found that Plaintiff was not disabled. AT 15-24. The Appeals Council denied Plaintiff's request for review on March 10, 2005. AT 4-7. Plaintiff commenced this action on April 29, 2005 pursuant to 42 U.S.C. § 405(g), seeking review of the Commissioner's final decision. Compl. (Dkt. No. 1).

B. Contentions

Plaintiff makes the following claims:

(1) The residual functional capacity ("RFC") determination was improper. Plntf's Brief (Dkt. No. 4) at 5-7.

(2) The opinion of the treating physician was improperly discounted. Plntf's Brief at 7-8.

(3) Plaintiff's allegations of disabling pain were improperly discounted. Plntf's Brief at 9- 10.

(4) The ALJ improperly failed to use a vocational expert as dictated by step five of the sequential evaluation process. Plntf's Brief at 11-12.

(5) No purpose would be served by remanding the matter. Plntf's Brief at 12. Defendant argues that the Commissioner's determination is supported by substantial evidence in the record, and must be affirmed. Deft's Brief (Dkt. No. 5).

C. Facts

Plaintiff was fifty-six years old at the time of the hearing. AT 133. Plaintiff obtained her college degree. AT 51, 133. Plaintiff last worked as a program director at a day care facility. AT 46, 135. She previously worked as a corporate trainer, advertising program coordinator, proofreader, and aerobics instructor. AT 46. Plaintiff last worked on June 28, 2002. AT 45. She alleges disability due to Crohn disease.*fn1 Id.

In 1993, an ultrasound of Plaintiff's gallbladder showed multiple stones. AT 77, 78. Thereafter, Plaintiff underwent a gallbladder surgery. See AT 77-79.

On August 18, 1999, Plaintiff was admitted to Lourdes Hospital with abdominal pain. AT 79. She was diagnosed as suffering from, inter alia, acute appendicitis and Crohn disease of the appendix. AT 79-80. A laparoscopic appendectomy was attempted, but the surgery was "converted to an open approach." AT 81. A pathology report showed that changes in the appendix "are most consistent with Crohn's disease." AT 89.

On May 27, 2003, Plaintiff saw Mark Epstein, M.D. AT 113-17, 119. She complained of experiencing, inter alia, diarrhea, arthritis, joints problems, and depression. AT 116-17. Dr. Epstein diagnosed Plaintiff as suffering from inflammatory bowel disease the extent of which is "unknown." AT 113. Dr. Epstein referred Plaintiff for blood work and other diagnostic testing. AT 113-17, 119. X-rays of Plaintiff's small bowel showed no evidence of thickening or inflammation, but Dr. Epstein noted "some scarring" which was "probably" due to Plaintiff's appendectomy. AT 111. On June 27, 2003, Dr. Epstein suggested that Plaintiff undergo a colonoscopy. AT 118.

On August 2, 2004, Dr. Epstein stated in a questionnaire prepared by Plaintiff's counsel that Plaintiff's diagnoses included severe irritable bowel syndrome, depression, and a "prior diagnosis" of Crohn Disease. AT 123. He noted that Plaintiff was currently being treated with Dicyclomine.*fn2

Id. He also noted that Plaintiff's symptoms include reclusiveness, agoraphobia, diarrhea, emotional lability, insomnia, and refractory obesity. AT 124. He opined that Plaintiff is unable to engage in substantial gainful employment. Id.

On October 31, 2004, Dr. Epstein completed the questionnaire again, indicating this time that Plaintiff's diagnoses included depression, extreme anxiety disorder, personality disorder, social anxiety disorder, and irritable bowel syndrome. AT 126. He noted that Plaintiff was receiving no treatment, adding that "depression symptoms of lability panic are controlled if she avoids out-of-home social/work activity." Id. He described Plaintiff's symptoms as bowel urgency and claustrophobia, with the latter related to her bowel urgency. AT 127. He noted that she was last seen on October 19, 2004. Id. With regard to whether Plaintiff is able to engage in substantial gainful employment, Dr. Epstein opined, "I do not believe so." Id.

In the interim, on April 10, 2003, Plaintiff underwent an internal medicine examination at the request of the agency by Mark Henderson, D.O. AT 92-96. Dr. Henderson noted Plaintiff's complaints of daily loose bowel movements, frequent abdominal cramping, fatigue, low grade fevers, and joint pains. AT 92. He noted that she denied taking medication for Crohn disease at the time, and that Plaintiff was taking only over-the-counter Metamucil. Id. Dr. Henderson diagnosed Plaintiff as suffering from a history of Crohn disease; history of low resting heart rate; evidence of degenerative joint disease at both knees; left shoulder pain; obesity; elevated blood pressure; and ...

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