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Kimberly Evans v. Michael J. Astrue

April 28, 2011


The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge


Plaintiff Kimberly Evans, brings this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security denying her claim for disability insurance benefits under the Social Security Act. The parties consented to this matter being decided by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The Commissioner and Evans have moved separately for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). For the reasons stated below, the Commissioner's motion is denied and Evans's motion is granted.


A. Administrative Proceedings

Evans applied for disability insurance benefits on July 16, 2001, alleging that she had been unable to work since February 18, 1991. See Administrative Record (annexed to Answer, filed July 14, 2010 (Docket # 6)) ("R.") at 95-98. Evans is insured for benefits through December 31, 1997. R. 245. Evans had previously been employed as an administrative assistant for IBM Research. R. 123.

Evans's application was denied on June 28, 2002, following a hearing before an Administrative Law Judge ("ALJ"). See R. 68-75. Evans appealed, R. 76-78, and on December 23, 2003, the Appeals Council remanded the decision to the ALJ, R. 82-85. A second hearing was held on May 6, 2005. R. 222-35. In a decision issued on June 15, 2006, the ALJ again denied Evans's application. R. 11-18. The Appeals Council rejected Evans's appeal, R. 3-7, and Evans filed a civil action seeking review of the Commissioner's decision in the Southern District of New York, see R. 254-57. A stipulation and order of remand pursuant to sentence four of 42 U.S.C. § 405(g) was filed on March 26, 2007. R. 256-57; Stipulation and Order of Remand, filed Apr. 5, 2007 (Docket # 6 in 06 Civ. 15167). On May 17, 2007, the Appeals Council remanded the matter to the ALJ for an additional hearing. R. 258-61. An ALJ held a third hearing on April 24, 2008. R. 407-32. In an opinion issued on March 26, 2009, the ALJ denied Evans's application. R. 244-53. The Appeals Council denied Evans's request for review. R. 236-38.

B. Procedural History

On March 9, 2010, Evans filed the instant action seeking review of the third ALJ decision. See Complaint, filed Mar. 9, 2010 (Docket # 1). On September 17, 2010, the Commissioner filed a motion for judgment on the pleadings. See Notice of Motion, filed Sept. 17, 2010 (Docket # 9); Com. Memo. Evans responded with a cross-motion for judgment on the pleadings. See Notice of Motion, filed Oct. 24, 2010 (Docket # 13); Memorandum of Law in Support of the Plaintiff's Motion for Judgment on the Pleadings, filed Oct. 24, 2010 (Docket # 14) ("Pl. Memo"). The Commissioner did not respond to Evans's motion.

C. The Administrative Record

1. Medical Records

In February 1991, Evans underwent a "vacuum assisted vaginal delivery." R. 146. "At the time of delivery, [Evans] sustained a fourth degree laceration," causing her to become "incontinent of stool." R. 146. Evans was treated by Dr. David Weiss. See R. 175. On July 1, 1991, Dr. Weiss's notes indicate that Evans was having "difficulty controlling [her] sphincter."

R. 184. He referred Evans to Dr. Martin Cohen. R. 159-60, 184.

On October 18, 1991, Evans met with Dr. Cohen. R. 172, 174. She reported incontinence, pain, and bleeding from the rectum since giving birth eight months earlier. R. 174. During the examination, Evans stated that she was having two to three bowel movements per day. R. 174. After examining Evans, Dr. Cohen recommended that Evans undergo a sphincteroplasty as soon as possible. R. 174. On October 24, 1991, Evans informed Dr. Cohen that her family was moving to North Carolina and that she and her husband were concerned about her undergoing surgery prior to their move. See R. 173. She asked if Dr. Cohen could provide her with the name of a surgeon in North Carolina. R. 173.

In November 1991, while Evans was still in New York, Dr. Arnold Berlin examined Evans and prepared a report for her malpractice suit against the doctor who had delivered her baby.*fn1 In the report he described Evans as a "healthy 32 year old female who underwent a spontaneous vaginal delivery in February 1991" in which she "sustained a 3rd degree laceration which was repaired." R. 139. He stated that after the delivery, Evans reported leakage of stool and flatus and told Dr. Berlin that she was "totally unaware of the passage of flatus." R. 139. Evans told Dr. Berlin that a general surgeon diagnosed her with fecal incontinence and placed her on "various bulk forming agents." R. 139. As a result, Evans reported that she was able to be "continent of solid stool . . . [but] is totally incontinent of liquid stool and flatus." R. 139. Dr. Berlin's examination revealed that Evans had "diminished sphincter tone," and that "in the anterior commissure of the anal canal there [was] a palpable 'groove' approximately .3-.4 cm in width extending the length of the anal canal. This groove [had] raised edges on either side." R. 139. Dr. Berlin opined that this groove "represent[ed] a segment of absent anal sphincter." R. 139. He surmised that Evans was a healthy female who suffered from anal incontinence as a result of an inadequately repaired laceration of the anal sphincter. R. 139. He opined that her condition required surgical repair in order to "restore [her] normal anal function." R. 139.

While in North Carolina, Evans was treated by Dr. Jackie Newlin and Dr. Richard Saleeby. See R. 140-46, 147-50. On January 16, 1992, Evans was examined by Dr. Newlin who reported that Evans "was becoming incontinent of stool with passage of stool from the vagina."

R. 146. She further noted that Evans had "an essentially nonexistent perineal body" and that a "rectovaginal fistula is palpable just to the right of the midline at approximately 7-8 cm up within the vaginal canal." R. 146. Dr. Newlin advised Evans that even if she were to repair the fistula, "complete control may not be achievable" through surgery due "to the possibility of nerve damage that may have occurred during delivery." R. 146.

On January 23, 1992, Dr. Saleeby and Dr. Newlin performed a "sphincterplasty, repair of rectovaginal fistula, perineorrhaphy and internal and external hemmorrhoidectomy" on Evans.

R. 144, 148. Dr. Newlin and Dr. Saleeby made the following observations during the procedure: 4

A small fistula which was approximately 2 mm was noted at the apex of the old episiotomy scar. There was a 3 cm[ ]defect in the continuity of the external rectal sphincter. There was also anterior rectal hemorrhoids, both internal and external.

R. 144. "Once surgery was completed, the external rectal sphincter was felt to be well attached" and the "perineal body was well built up." R. 145. On the morning of her discharge, Evans was able to "hold liquid stools." R. 148.

On February 7, 1992, Evans saw Dr. Jerome Gardner for heavy vaginal bleeding. R. 143. Dr. Gardner examined Evans and found "no obvious bleeding site." R. 143. He increased Evans's dosage of the prescription medication, Provera, and recommended bed rest "until the bleeding slows down." R. 143. He also advised Evans to follow up with Dr. Newlin the following week. R. 143.

On March 5, 1992, Dr. Newlin examined Evans. R. 142. She noted that Evans had "good depth in her perineal body" and was "continent of solid stool, [but] incontinent of diarrhea and liquid stool." R. 142. Evans stated that since the surgery she was experiencing heavy periods causing her to produce more diarrhea. See R. 142. She noted that the prescription medication, Anaprox, helped control her diarrhea. R. 142. Dr. Newlin concluded that Evans's IUD was causing her heavy bleeding and advised her to use another form of birth control. See R. 142. She also recommended that Evans continue to take Anaprox. R. 142. Evans visited Dr. Newlin again on April 30, 1992. R. 141. Evans reported that she was still "continent of stool but ha[d] problems when she ha[d] diarrhea." R. 141. She also noted that diarrhea occurred when she had her period. R. 141. Dr. Newlin conducted a physical examination of Evans which revealed that her "perineal body [was] well healed" and that her cervix was clear. R. 141. Evans's uterine size was normal with "no palpable adnexal masses." R. 141. Dr. Newlin once again noted that she believed that Evans's IUD was causing her diarrhea. See R. 141. She recommended that Evans remove her IUD if the diarrhea continued. R. 141. On August 26, 1992, Dr. Saleeby performed a "fiberoptic colonoscopy" on Evans. R. 147. Dr. Saleeby found no evidence of masses, polyps, or angiodysplastic lesions. R. 147.

In July 1993, Evans was examined by Dr. John Garbutt, Jr., at the request of Medical Liability Mutual Insurance Company. R. 153-56. Evans told Dr. Garbutt that since her surgery, she "no longer passes stool per vagina or flatus but remains incontinent whenever she has diarrhea." R. 155. Dr. Garbutt described Evans as "robust," "healthy appearing," "in no distress," "pleasant," and "cooperative." R. 155. Dr. Garbutt conducted a rectal examination and observed that "voluntary squeezing of the external sphincter is essentially absent." R. 154. Dr. Garbutt also performed a manometry, which is used to evaluate incontinence. See R. 153; Memorandum of Law in Support of the Commissioner's Motion for Judgment on the Pleadings, filed Sept. 17, 2010 (Docket # 10) ("Com. Memo") at 10. He found that Evans's anoinhibilitory reflex [was] intact. [Her] sensory threshold [was] markedly increased at [greater than] 100 ccs. The capacity is 150 ccs. The patient is unable to perform the Kegel maneuver. She increases her abdominal pressure which actually results in decreased sphincter tone. The external sphincter strength was too low to measure.

R. 153. His impression was that Evans had "an abnormal anorectal manometry and rectal examination characterized by an absent external sphincter tone and a marked increase in sensory threshold to volume expansion." R. 151.

Dr. Richard Hausknecht prepared a report at the request of the defendants in Evans's malpractice suit. After reviewing her medical record, Dr. Hausknecht determined that Evans had "persistent and probably permanent rectal dysfunction." R. 158. However, he noted that her records indicated that her condition was "much improved." R. 158.

Sometime in 1993, Evans moved back to New York. She met with Dr. Cohen on October 28, 1993. R. 161, 170. At that time, she reported that she was "generally doing well."

R. 161. She told Dr. Cohen that she had undergone a sphincterplasty in January 1992. R. 161, 170. Evans stated that she was "generally very pleased" with the results of the procedure. R. 161. She stated that she had "incontinence only with diarrhea" and that besides one accident, which had occurred two days prior to her visit, she was "moving her bowels well." R. 170. She also noted that she was taking Imodium (an over-the counter medication for diarrhea) because "her stool tended to be loose." R. 161, 170. She stated that she had recently had a colonoscopy that was negative. R. 161, 170. On examination, Dr. Cohen noted that Evans's resting tone was fair, she had fair squeeze, and that her anus was almost completely closed at rest. R. 161. He recommended that Evans try "Questran to help bind her stools," and advised her "to try Fibercon tablets . . . to help dry up and bulk her stools." R. 170; see also R. 161.

In a report dated March 30, 1994, prepared at the request of Evans's attorneys, Dr. Cohen opined that Evans's condition "should remain relatively stable for many years." R. 170. Dr. Cohen stated that he expected neither improvement nor deterioration in her continence. R. 170-71. He went on to say that her "continence would be more dependent on her bowel habit than on anything else," and that any pregnancy would put Evans at risk of "decreased anorectial sphincter muscle tone and . . . incontinence." R. 171.

Evans did not see Dr. Cohen again until April 3, 1996. See R. 161, 169. At this visit, Evans reported that she was having "multiple loose stools" and that she "must get into the shower immediately" after a bowel movement or otherwise she would "leak[] all day long." R. 161. She further reported that she had a "'couple of accidents'" when her stool was "particularly loose" and felt that her incontinence may be stress related because her father had recently passed away. R. 161. On examination, Dr. Cohen noted that Evans had no rectal bleeding and that Evans had "fair resting sphincter tone[,] fair squeeze[, and] no masses. R. 161. Dr. Cohen also stated that her "autoscopy" came back "essentially negative." R. 161. Dr. Cohen recommended that Evans continue taking Imodium, since Evans indicated that it "definitely works," and advised her to avoid doing anything surgically about her incontinence until she was through having children. R. 169. He also told Evans to have a physiological sphincter test before contemplating any additional surgeries. See R. 169.

From 1996-2001, Dr. Weiss continued to treat Evans for various ailments, including sinus problems, hand lesions, sore throats, laryngitis, and nasal congestion. R. 175-84. During these visits, Dr. Weiss made no notations regarding Evans's fecal incontinence. The only note relating to her condition was from June 8, 1996, when Dr. Weiss noted that "a stool sample [was taken] for Dr. Cohen." R. 182. On May 9, 1997, Evans delivered her second child by caesarean section. R. 410.

On May 21, 1998, Evans again visited Dr. Cohen. R. 169. She reported that she was still experiencing "some" episodes of incontinence and was taking Imodium, which was helping her symptoms. R. 169. Evans told Dr. Cohen that her bowel movements were always "loose." Dr. Cohen noted that Evans's weight was up. R. 169. Evans "deferred" a rectal examination. R. 169. On June 2, 1998, Dr. Cohen performed a colonoscopy on Evans, which showed "no evidence of angiodysplasias, neoplasms, polyps," or diverticula. R. 166. After her June 2 colonoscopy, Evans did not visit Cohen again until October 28, 2004. At this time, Evans told Dr. Cohen that she was experiencing three bowel movements per day and frequent leakage. R. 188. Evans felt that her bowel movements were abnormal. R. ...

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