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WOODS v. BARNHART.

April 8, 2004.

TROY WOODS, Plaintiff,
v.
JO ANNE B. BARNHART., COMMISSIONER OF SOCIAL SECURITY, Defendant



The opinion of the court was delivered by: GERALDINE SOAT BROWN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Troy Woods brought this action pursuant to 42 U.S.C. § 405(g) for judicial review of the decision of the Commissioner of Social Security. Plaintiff applied for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") on or around June 9, 2000, (R. 77-79, 288-289.)*fn1 Plaintiff's claims were denied initially and on reconsideration, and a bearing was held before an Administrative Law Judge ("ALJ") on November 19, 2001, (R. 295, 297.) The ALJ issued an unfavorable decision on January 22, 2002, and the Appeals Council declined to review Plaintiffs claims. (R. 19, 4-5.) The parties have consented to the jurisdiction of a magistrate judge [dkt 11, 12], and have each filed a motion for summary judgment. [Dkt 17, 25, 22]. For the reasons stated below, Plaintiff's motion is granted, Defendant's motion is denied, and the case is remanded for further proceedings consistent with this decision. BACKGROUND

Plaintiff was born in 1972 and was twenty-eight years old at the time of the hearing. (R. 77, 301.) He graduated from high school and completed one year of college, (R. 97.) Since 1992, Plaintiff has worked as a video store clerk, emergency medical technician, office manager, cigar shop manager, parts manager, and, most recently, technical customer service representative. (R. 92,117-18,302.)

 A. Medical Evidence

  Plaintiff alleges disability based on chronic Crohn's disease and a lower back injury.*fn2 (R. 91.) Plaintiff has been most recently treated by two physicians, Dr. Terry Ostrowski and Dr. Wanchai Sangchantr.*fn3

  Plaintiff was apparently first diagnosed with Crohn's disease in 1984. (R.218.) Subsequent radiographs of Plaintiff's abdomen taken on July 24, 1993 indicated that "[e]arly Crohn's disease cannot be excluded," as "[f]indings consistent with Crohn's disease is identified in the distal ileum." (R. 272.) Plaintiff had recurrent abdominal pain, increased bloating and Crohn's related flare ups through 1995. (R. 200, 203.) He also was unable to eat solid foods during this time. (R. 203.) On August 25, 1995, Plaintiff underwent surgery to address bowel obstruction and multiple entero-enteric fistulas associated with his Crohn's disease. (R. 145-150.) That procedure involved an exploratory laparotomy*fn4 with extensive enterolysis*fn5, an enterotomy*fn6 with decompression of an obstructed small bowel, the closure of an ileojejunal fistula*fn7, the closure of the ileosigmoid*fn8 and the resection of the terminal ileum and right colon. (R. 145.) Plaintiff's postoperative diagnosis included "Crohn's disease with near complete distal ileal small bowel obstruction." (Id.)

  Between his surgery on August 1995 and May 2000, Plaintiff had only periodic complaints of symptoms related to Crohn's disease. On September 16, 1996, Dr. Ostrowski reported that Plaintiffs abdominal pain was "rare" and that he was "eating good." (R. 198.) On December 3, 1996, Dr. Ostrowski reported that Plaintiff's abdominal pain was "occ[asional]" but that his appetite had diminished and his weight was down. (Id.) On April 24, 1997, Dr. Ostrowski reported that Plaintiff had complained of "mild abd[ominal] pain-still some diarrhea." (R. 197.)

  On June 2, 1997, Plaintiff reported having been in a car accident. (R. 197, 311.) He was seen again about two weeks later and complained that his back was still causing him pain. (R. 196.) Plaintiff had an MRI of his lumbar spine taken on August 5, 1997, which indicated the presence of a degenerating disc with central disc protrusion and grade 1 anterior slippage. (R. 259.) Plaintiff was diagnosed with acute cervical strain on May 4, 1998, although x-rays of Plaintiff's cervical and lumbar spine taken on that date were "normal." (R. 123, 127-28.) On September 24, 1998, Plaintiff reported some pain and bloating after he was taken off Methotrexate.*fn9 (R. 193.) Between December 14, 1998 and January 13, 1999, Plaintiff underwent six physical therapy sessions to treat his lower back pain. (R. 171.) After those sessions, Plaintiff reported that he had "occasional soreness" following heavy activity but was otherwise "pain-free." (Id.) On May 11, 1999, Plaintiff reported "no abd[ominal] pain." (R. 192.)

  On March 11, 2000, Dr. Ostrowski noted that Plaintiff had suffered two weeks of abdominal pain in addition to back pain. (R. 191.) On May 27, 2000, Plaintiff underwent a colonoscopy*fn10 with biopsies performed by Dr. Sangchantr. (R, 120.) In his report regarding the "indications for surgery," Dr. Sangchantr indicated that Plaintiff had been "doing well" since his previous surgery in 1995 and had been taking Methotrexate once a week. (Id.) Dr. Sangchantr indicated that Plaintiff had recently developed recurrent abdominal pain "with occasional loose stool without diarrhea." (Id.) According to the report, the more Plaintiff ate, the more he had pain. (Id.) The report also indicated that Plaintiff did not like to take Prednisone because it produced "discomfort mentally." (Id.) In his report regarding the "findings and procedure" following the surgery, Dr. Sangchantr noted the presence of inflamation and ulcerations, and ordered changes to Plaintiff's medication. (R. 121.) On July 6, 2000, Plaintiff was still taking Prednisone for his Crohn's disease, but he reported that the abdominal pain persisted. (R. 191.) Dr. Ostrowski noted that Plaintiff had three to four loose bowel movements a day. (Id.) On August 3, 2000, Dr. Ostrowski completed a Gastrointestinal Report for the Bureau of Disability Determination Services ("DDS"). (R. 133-134.) In that report, Dr. Ostrowski listed his current diagnosis as "Crohn's disease[;] Low back symptom." (R. 133.) He noted that Plaintiff had no persistent or recurrent ascites, *fn11 ulceration, bloody stools, or persistent systemic manifestations. (R. 133.) He also noted, however, that Plaintiff had persistent or recurrent intestinal obstruction demonstrated by abdominal pain and distention. (R. 134.)

  On August 16, 2000, Dr. Virgilio Pilapil, a state agency physician, completed a Physical Residual Functional Capacity Assessment for the DDS. (R. 156-163.) He concluded that Plaintiff could lift 50 pounds occasionally and 25 pounds frequently, could sit, stand and/or walk for six hours in an eight hour work day, and was unlimited in his ability to push or pull. (R. 157.) He opined that Plaintiff should be capable of performing medium level work by May 2001. (R. 163.) On August 16, 2000, another doctor, Robert T. Patey, reviewed the medical evidence and affirmed Dr. Pilapil's assessment of Plaintiff's limitations. (R. 156.) Dr. Patey's qualifications were not found in the record.

  On November 24, 2000, Dr. Ostrowski completed a second Gastro-Intestinal Report for DDS. (R. 136-37.) Dr. Ostrowski noted in that report that Plaintiff continued to have abdominal pain described as cramping. (R. 137.) He also noted that same day that Plaintiff had a diminished appetite. (R. 190.) On December 21, 2000, Dr. Sangchantr completed a Gastro-Intestinal Report for DDS. (R. 138-140.) Dr. Sangchantr diagnosed Plaintiff with Crohn's disease. (R. 139.) He also noted that there were no recurrent ascites or gross blood in his stool, but that there were recurrent ulcers in his colon and ileum and recurrent abdominal pain, which was made worse by stress. (Id.) He further observed that Plaintiff's response to treatment was "limited" and " variable." (R. 140.) He also noted the presence of "abdominal pain and fatigue," which he described as `Variable." (Id.) Finally, in response to a question regarding Plaintiff's ability to do "work related activities," Dr. Sangchantr stated: "[Plaintiff] can move freely, but, when the abdominal pain occurs, it is very difficult, torturous, for him to function. He is a stoic man, usually does not complain." (Id.)

  On March 23, 2001, Dr. Ostrowski completed a Medical Assessment of Condition and Ability to Do Work-Related Activities ("Medical Assessment"). (R. 180-183.) Dr. Ostrowski stated that, since his surgery in 1995, Plaintiff "has had a recurrent bout of abdominal pain and is on Methotrexate and occasional Prednisone." (R. 180.) He opined that Plaintiff's condition was "unchanged since surgery" in 1995. (Id.) He did not impose significant limits on Plaintiff's ability to stand, walk or sit; he stated that Plaintiff could sit, stand and walk for six hours in an eight hour day and could sit, stand and walk for four hours uninterrupted. (R. 181.) He also stated that Plaintiff could lift and carry 15 pounds occasionally, and bend, push and pull occasionally. (Id.) He noted, however, that there was "day to day variation in [Plaintiff's] ability [and] duration of functioning." (Id.) He also noted that Plaintiff's medications may cause drowsiness, but stated that Plaintiff did not, to his knowledge, need to lie down intermittently throughout the day. (R. 181-82.) Dr. Ostrowski concluded that Plaintiff may require more visits to the bathroom during a flare-up. (R. 182.) He also concluded that Plaintiff would have "marked limitations" in his ability to complete a normal workday and workweek and perform at a consistent pace without an unreasonable number and length of rest periods "if work was sedentary." (Id.) On October 1, 2001, Plaintiff reported that his abdominal pain had responded to an increased dose of Prednisone. (R. 185.) He further reported that he was continuing to use Ultram for his back pain. (Id.) An October 29, 2001 x-ray of Plaintiff s lumbosacral spine suggested muscle spasm, but did not indicate any compression fracture deformity or significant osteoarthritic changes. (R. 287.)

  The medical records indicate a steady drop in Plaintiff's weight during 2000 and 2001. At the time of his May 27, 2000 colonoscopy, Plaintiff weighed 168 pounds. (R. 120.) On November 24, 2000, his weight was down to 156 pounds. (R. 136.) On July 10, 2001, Plaintiff suffered more "weight lossage" [sic].*fn12 (R. 185.) On October 1, 2001, Plaintiff weighed 1471/2 pounds, and on October 11, 2001 he weighed 146 pounds. (R. 184-85.)

 B. Plaintiff's Testimony

  At the hearing before the ALJ, Plaintiff testified that he had been able to maintain employment following his surgery in 1995. (R. 303-04.) He stated, however, that even during that period of time he was forced to take time off work for medical reasons, which eventually forced him to resign from at least one job. (R. 304.) Plaintiff explained that his last job had ended because:

  [His] Crohn's was acting up. [He] was having flare-ups. And also, at the time, [he] was having pretty bad back pain and [he] was taking medication for that, which made [him] drowsy and [he] wasn't performing well at work. . . . [A]fter the flare-ups, [he] took off from work for a lengthy period of time. [He] went back to work. [He] worked for one week and [he] had to take off. [He] ended up taking off from work again, with the understanding that if [he] went back to work and had to take off another time, that [he'd] be fired. . . . And after some time and getting a call every day from [his] boss, for about a month or so . . . [his boss] would call [him] . . . every day. And [he] didn't see ...


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