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OLSON v. APFEL

August 21, 1998

CAROL A. OLSON, Plaintiff,
v.
KENNETH S. APFEL, Commissioner of the Social Security Administration,1 Defendant.



The opinion of the court was delivered by: KEYS

MEMORANDUM OPINION AND ORDER

 The Plaintiff, Carol A. Olson, seeks judicial review pursuant to the Social Security Act, 42 U.S.C. § 405(g), of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Disability Insurance Benefits. Plaintiff moves this Court for Summary Judgment reversing the Commissioner's decision denying her claim for such benefits or, in the alternative, an Order remanding the case to the Commissioner for further proceedings. The Commissioner has filed a Cross-Motion for Summary Judgment in his favor. For the reasons set forth below, the Commissioner's Motion is denied and Plaintiff's Motion is granted. Specifically, this cause is remanded to the Commissioner for an award of benefits to Plaintiff.

 Procedural History

 On February 1, 1994, Plaintiff filed an application for Disability Insurance Benefits, alleging that she had been unable to work since May 1, 1992. (R. at 62-64.) *fn2" She described her disability as being based on chronic fibromyalgia, chronic fatigue syndrome, mitral valve prolapse, and a host of other ailments. (R. at 78.) On June 8, 1994, Plaintiff's application was denied. (R. at 65-67.) On June 20, 1994, Plaintiff filed a request for reconsideration, (R. at 70), which was denied on August 25, 1994. (R. at 71-73.) On October 4, 1994, Plaintiff filed a Request for Hearing, (R. at 74), and, on September 12, 1995, a hearing was held before Administrative Law Judge ("ALJ") Christine Holtz. (R. at 30-61.) On December 19, 1995, the ALJ issued a decision finding that Plaintiff was not disabled. (R. at 14-19.) On December 22, 1995, Plaintiff filed a Request for Review of the ALJ's decision with the Commissioner's Appeals Council. (R. at 10.) On December 13, 1996, the Appeals Council denied Plaintiff's Request for Review of the ALJ's decision, which stands as the final decision of the Commissioner, (R. at 5-6), and is the subject of the Cross-Motions now before this Court.

 Factual Background

 A. Plaintiff's Testimony

 At the hearing before the ALJ, Plaintiff testified that she was then 42 years old, having been born on July 4, 1953. She attained an Associate Arts degree and has worked in the past as a dental assistant and as a secretary/claims analyst for doctors and insurance companies. (R. at 39-42, 82.) She last worked in May, 1990 as a physician's assistant.

 Plaintiff testified further that, in May, 1992, she began to feel weak and tired and developed pain in all of her muscles and joints. She also began to develop chronic sinusitis infections and frequent sore throat. She was hospitalized in May, 1992; June, 1992, February, 1993; and June, 1993. (R. at 44-45.) It was thought that Plaintiff had rheumatoid arthritis, but the treatments she was given did not improve her condition. (R. at 47.) Finally, in July, 1993, Plaintiff went to the Mayo Clinic, where she was diagnosed as having chronic fatigue syndrome and fibromyalgia. (R. at 46-47, 137-138, 172, 176, 417-427.)

 In describing the effects of her condition, Plaintiff testified that she becomes tired and fatigued easily upon minimal exertion. For example, the performance of simple household chores, such as putting clothes in the dryer, cleaning the house, or watering her plants, results in her becoming totally fatigued and she must sit down or lie down. Even prolonged standing or walking causes severe weakness and fatigue. Plaintiff testified further that, although she may have some energy in the morning, it is dissipated by noon even if she minimally exerts herself, such as in performing housework, and she must lie down in the afternoon for up to two hours. (R. at 49-50, 100-101.) If she pushes herself one day, she is unable to do anything the next day except lie down due to weakness and fatigue. (R. at 52.) About three times a week, Plaintiff develops dizziness to the point that she feels as if she is about to pass out, which her physician has diagnosed as hypotension. When these attacks occur--which may last for up to two hours--she must sit down. (R. at 53.) Her physician has advised her against driving an automobile because of the effects of the hypotension. (R. at 55.)

 Plaintiff testified that, with her chronic fatigue syndrome, she has a chronic sore throat, chronic fevers, chills, and sweats. She also has aches, pain, and swelling of her hands and other joints due to her arthritic condition. (R. at 54.) When this occurs, she has very little use of her hands. (R. at 57.)

 Annette Rak is the owner of a gift shop. In a letter dated August 30, 1995, Ms. Rak states that, in September, 1994, Plaintiff asked Ms. Rak to allow her to work in the gift shop for a few hours one day a week so that she could get out of the house. According to Ms. Rak, she scheduled Plaintiff to work from 10:00 a.m. to 2:00 p.m. on Fridays, waiting on customers, answering the telephone, and unpacking and pricing items of stock. Plaintiff was unable to stand for more than 15 or 30 minutes without becoming pale, weak, and tired, and could not lift more than about five pounds from the boxes before having to sit down. Plaintiff had to sit down in order to serve the customers, and even this would cause fatigue to the point that she would have to go home after about two hours. On some Fridays, Plaintiff would call in to report that she was unable to come in because of her health problems. This experiment lasted for about two months. (R. at 56-57, 434-435.)

 B. Medical Records3

 Plaintiff's primary care physician is Dr. Bass. Dr. Bass has referred her to Dr. Freeman, an endocrinologist, and Dr. DeLahera, a cardiologist. She has also been examined and diagnosed by Dr. Mason, at the Mayo Clinic. (R. at 43, 46, 137-138, 417-427.)

 The record shows that, since at least 1990, Plaintiff has had persistent complaints of multiple joint pain, sore throat, sinus infections, fevers and chills, nausea, marked weakness, rapid weight loss, chest pains, headaches, dizziness, tiredness, and that she becomes easily fatigued. She has undergone numerous medical laboratory and x-ray workups in an effort to determine the etiology of these complaints. (R. at 369-402.) Plaintiff has been diagnosed as having mitral valve prolapse, (R. at 364-370), and rheumatoid arthritis, with pain and swelling in her fingers and hands. (R. at 184, 397, 441.) It was also thought that Plaintiff might have a malabsorption disorder, (R. at 145, 177), or systemic lupus erythematosis. (R. at 172.) On June 12, 1993, she tested positive for the Epstein-Barr Virus. (R. at 119, 137, 148, 180, 418.)

 Because of the diverse opinions and suspicions held by Dr. Bass, Plaintiff's treating physician, Dr. Bass recommended that Plaintiff obtain a more definitive diagnosis from the specialists at the Mayo Clinic regarding her symptoms. (R. at 261.) On July 6, 1993, Plaintiff underwent extensive laboratory tests and examinations by Dr. Mason at the Mayo Clinic. Dr. Mason noted that Plaintiff--who is five feet, eight inches tall--weighed only 103 pounds, which he considered "remarkable." (R. at 137.) *fn4" He opined that Plaintiff appeared to be suffering from chronic fatigue syndrome. (R. at 138.) According to Dr. Bass, Dr. Mason also felt that Plaintiff suffered from malacia and, possibly, early-stage systemic lupus. (R. at 176.)

 On April 26, 1994, Plaintiff was examined by Dr. Vinod G. Motiani at the request of the Commissioner. Despite his lack of objective findings on physical examination of Plaintiff, based on his review of her medical history and symptoms, Dr. Motiani believed that her complaints of diffuse pain was consistent with a diagnosis of fibromyalgia and that Dr. Mason's diagnosis of chronic fatigue syndrome was plausible. (R. at 208.) In a report dated July 28, 1994, ...


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