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BARRY v. BARNHART

September 13, 2004.

PATRICK T. BARRY, Plaintiff,
v.
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: NAN NOLAN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Patrick T. Barry seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration ("Agency") denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. §§ 416(i), 423(d). This matter is before the court on the parties' cross-motions for summary judgment. Barry asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision denying Barry's application. For the reasons set forth below, the court grants Barry's motion and remands this case to the Commissioner for further proceedings consistent with this opinion.

PROCEDURAL HISTORY

  Barry filed an application for DIB on November 2, 2000, alleging that he had been disabled since June of 2000, due to congestive heart failure, fatigue, and stress. (Administrative Record ("R.") at 48-50, 65). The Agency denied his application at the initial levels of administrative review (R. 29-34, 38-40), and he requested an administrative hearing. (R. 41-41A). On March 19, 2002, an administrative law judge ("ALJ") conducted a hearing at which Barry, represented by counsel, appeared and testified. (R. 216-245). In addition, Ashok Jilhewar, M.D., testified as a medical expert. (R. 219-21, 231-32, 243-44). In a decision dated April 23, 2003, the ALJ found that Barry was not disabled because he retained the ability to perform his past relevant work as an inside telephone salesperson and customer service representative. (R.14-18). This became the final decision of the Commissioner when the Appeals Council denied Barry's request for review of the decision on August 8, 2003. (R. 5-7). See 20 C.F.R. §§ 404.955; 404.981. Barry has appealed that decision to the federal district court, where the parties have consented to the jurisdiction of the Magistrate Judge pursuant to 28 U.S.C. § 636(c).

  FACTUAL BACKGROUND

  Barry was born on October 15, 1945, making him fifty-seven years old at the time of the ALJ's decision. (R. 48). He graduated from high school in 1964, and went to work as a customer service and sales representative for Svedala Industries. (R. 66, 71, 225). He did his work over the telephone, spent most of the day sitting, and did not have to lift more than three or four pounds at a time. (R. 66, 225-227). He left the job after thirty-six years when he was hospitalized for a blood clot in his leg in June of 2000. (R. 227).

  A. Medical Evidence The relevant medical evidence in this case dates from June 29, 2000, when Barry was hospitalized at Rush-Copley Medical Center with complaints of leg pain. (R. 107-109). Barry had significant edema, and was jaundiced as well. (R. 110). Examination and x-rays revealed evidence of congestive heart failure and cardiomyopathy.*fn1 (R. 108, 120). An EKG showed minor, nonspecific changes, but an ECG showed left ventricular ejection fraction to be just 10-15%.*fn2 (R. 108). A Doppler study revealed deep vein thrombosis in the left leg. (R. 108). A liver function test was abnormal, with elevated enzymes and bilirubin. (R. 108, 111). Ultrasound of the gal bladder and pancreas revealed a large, right pleural effusion. (R. 111, 117). Hepatic veins were prominent. (R. 111). The physician performing the liver consultation felt Barry suffered from chronic liver disease, perhaps due to cardiac cirrhosis or alcohol abuse. (R. 111). Barry admitted to drinking a six-pack of beer per day for many years. (R. 110). Dr. Costanzo, of the cardiac transplant service, recommended that if Barry abstained from alcohol for six months, and potentially became a candidate for a heart transplant, a liver biopsy would be necessary to rule out cirrhosis. (R. 108). While Barry weighed 179 pounds upon admission, his discharge weight was 139 following anticoagulant treatment with Coumadin and Heparin. (R. 108). On July 9, 2000, Barry was discharged on several medications, including Coumadin (an anticoagulant to treat thrombosis), Lasix (a diuretic), and Vasotec (for hypertension). (R. 108).

  Following his hospitalization, Barry followed a course of treatment with Dr. Santosh Gill, and made regular visits to the Coumadin treatment clinic to monitor the therapeutic levels of that medication and watch for side effects. (R. 143-162). On July 14, 2000, Barry reported that he had no chest pain or shortness of breath. (R. 162). He exhibited 2 pedal edema. (R. 162). Dr. Gil encouraged Barry to walk five to ten minutes daily, comply with his diet, and abstain from alcohol. (R. 162). By July 27, 2000, Dr. Gil thought Barry might be capable of part-time sedentary work, but recommended that he apply for long-term disability. (R. 159). His cardiomyopathy and congestive heart failure were stable, but he suffered shortness of breath even when lying down. (R. 159). On August 14, 2000, Barry stated that he had no chest pains or shortness of breath, and was sleeping okay. (R. 156). He was abstaining from alcohol and following his diet. (R. 156). Barry reported that he had applied for disability as recommended. (R. 156). Dr. Gil indicated that there was no ankle edema and pedal pulses were good. (R. 156). He also felt that Barry would have to undergo a cardiac catheterization to rule out coronary artery disease in about three months. (R. 156). He encouraged Barry to walk five to ten minutes per day. (R. 156). On September 14, 2000, Barry reported that he was not experiencing any chest pain or shortness of breath. (R. 152). At that time, he was walking two blocks per day; Dr. Gil recommended he increase that to fifteen minutes per day. (R. 152).

  By October 25, 2000, Barry's deep vein thrombosis had stabilized, and he returned to the hospital for a cardiac catheterization. (R. 132). An ECG was abnormal, showing left ventricular hypertrophy with repolarization abnormality. (R. 142). According to Dr. Gil, cardiac catheterization revealed coronary artery, but it was not severe enough to explain the left ventricular dysfunction. (R. 147). Barry continued to report he felt "okay" and had no chest pains or shortness of breath. (R. 147). He was trying to walk thirty minutes per day. (R. 147). His physical examination was essentially normal. (R. 147). He reported that he had been granted disability from work, but was also trying to get social security disability. (R. 147). His condition remained essentially unchanged over the next few visits. (R. 143, 206-207).

  On January 10, 2001, Dr. Roopa Kari examined Barry at the request of the state disability agency. (R. 169-172). Dr. Kari noted Barry's history of congestive heart failure and deep vein thrombosis. (R. 169). The doctor also noted Barry's complaints of tiring easily and shortness of breath when walking uphill or up stairs. (R. 169-170). Barry reported that, prior to being hospitalized, he drank four beers per day and smoked one-and-a-half to two packs of cigarettes per day. (R. 170). Physical examination was essentially normal, and cardiac rhythm and heart sounds were normal. (R. 171). Peripheral pulses were normal as well. (R. 171). Dr. Roopa felt Barry's shortness of breath was due to his coronary artery disease or alcoholic cardiomyopathy. (R. 172). The doctor also noted that his deep vein thrombosis was being treated with Coumadin, and that there were no current problems with alcohol. (R. 172).

  On February 7, 2001, Dr. Virgilo Pilapil, a state disability agency physician, reviewed the preceding medical records and found that Barry could occasionally lift or carry up to twenty pounds, frequently lift or carry up to ten pounds, stand or walk about six hours of an eight-hour workday, sit about six hours of an eight-hour workday, and push or pull hand or foot controls without limitation. (R. 174). He felt that Barry would be able to occasionally climb ramps, stairs, ladders, ropes, or scaffolds. (R. 175).

  Barry underwent an ECG on April 18, 2001. (R. 199-200, 206). Ejection fraction at that time was 40%. (R. 199). On June 5, 2001, Barry reported that he had no chest pain, but occasionally became short of breath upon exertion. (R. 199). His finger tips were numb all the time. (R. 199). He was walking twenty to thirty minutes per day. (R. 199). Because Barry's deep vein thrombosis had been treated for a year and his left ventricular function had improved, Dr. Gil felt that Coumadin treatment should be discontinued. (R. 199). He also questioned Barry's compliance with his diet, as he had been gaining weight. (R. 199). Dr. Reynaldo Gotanco, a state disability agency physician reviewed the medical records accumulated as of July 18, 2001, and found that Barry could occasionally lift or carry up to twenty pounds, frequently lift or carry up to ten pounds, stand or walk about six hours of an eight-hour workday, sit about six hours of an eight-hour workday, and push or pull hand or foot controls without limitation. (R. 185). According to Dr. Gotanco, Barry could occasionally climb ladders, ropes, or scaffolds, and he could frequently climb ramps or stairs. (R. 186).

  By August 7, 2001, Barry had lost ten pounds, and was continuing to walk twenty to thirty minutes per day. (R. 198). He stated he was not experiencing shortness of breath or chest pain. (R. 198). On October 30, 2001, Barry and Dr. Gil met to discuss Barry returning to work. (R. 202). Barry reported that he got tired easily, but did not suffer shortness of breath or chest pains. (R. 197). Noting how easily Barry became fatigued, Dr. Gil stated that he "doubt[ed] he can tolerate a full time job, even if sedentary." (R. 197). Dr. Gil placed Barry on medication for high ...


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