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LOWE v. BARNHART

September 28, 2004.

BETTY LOWE, Plaintiff,
v.
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: MICHAEL MASON, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Betty Lowe brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration (the "SSA") denying her application for Widow's Insurance Benefits ("WIB") under Title II of the Social Security Act (the "Act"). See 42 U.S.C. § 402(e). The parties have filed cross-motions for summary judgment in this case: plaintiff asks that we reverse and remand the decision; the Commissioner asks that we affirm it. For the following reasons, we grant the plaintiff's motion, deny the Commissioner's motion, and remand this case to the Commissioner for further proceedings consistent with this opinion.

Procedural History

  Plaintiff applied for WIB on March 16, 1995, alleging that she been disabled since January 1, 1993, as a result of abdominal pain and diabetes. (R. 97-99). The SSA denied her application at the initial levels of administrative review (R. 100-103, 105-07), and she requested an administrative hearing. (R. 124). On September 19, 1996, an administrative law judge ("ALJ") conducted a hearing at which plaintiff, represented by counsel, appeared and testified. (R. 443-469). In a decision dated November 18, 1996, the ALJ found that plaintiff was not disabled because she retained the ability to perform her past relevant work as a secretary or interpreter for the deaf. (R. 248-54). The plaintiff requested review of this decision, which the Appeals Council granted on August 31, 1998, remanding the case to another ALJ for further proceedings. (R. 278-80).

  On June 9, 1999, a second ALJ conducted another hearing at which plaintiff, represented by counsel, and plaintiff's daughter appeared and testified. (R. 27-96). In addition, Paul Glickman, M.D., and Robert Marquis, M.D., testified as medical experts (R. 27, 64-79), and Thomas Dunleavy provided vocational expert testimony. (R. 79-90). In a decision dated September 10, 1999, the ALJ found that plaintiff was disabled before April 4, 1995, but that she had the capacity to perform her past relevant work as an interpreter for the deaf after that. (R. 14-22). This became the Commissioner's final decision when the Appeals Council denied plaintiff's request for review of the decision on January 16, 2004. (R. 2-3). See 20 C.F.R. §§ 404.1455; 404.1481.

  Plaintiff's Background

  Plaintiff was born on October 15, 1941, making her fifty-one years old as of the date she alleges her disability began, January 1, 1993, and fifty-seven at the time of the ALJ's decision. (R. 22-23, 98). She has a high school education and knows sign language, which she learned because her parents were deaf. (R. 17, 34). Although she is not a certified interpreter, her work experience has involved her ability to sign. (R. 80-81). From 1978 until 1990, plaintiff worked as an interpreter for the deaf at a college. (R. 110, 112). From 1990 until January of 1993, she worked at an apartment building for the deaf or disabled, where her responsibilities included collecting rent, typing, assisting tenants with problems, and interpreting. (R. 36-37, 110-11). She quit that job due to abdominal pain and complications from gall bladder surgery. (R. 37-38).

  Medical Evidence

  The relevant medical evidence in this case indicates that plaintiff is an insulin-dependent diabetic, and has high blood pressure. She also suffers from chronic abdominal pain, which seemingly caused her to experience an alarming weight loss in 1993 and 1994. The medical record consists mostly of clinical notes — many of which are illegible — detailing her repeated doctor visits during this period. Unfortunately, physicians were apparently unable to determine the etiology of plaintiff's complaints, and appeared to have little success in treating them.

  Plaintiff traces her problems to gallbladder surgery she underwent on January 28, 1993. (R. 143). In the weeks following the procedure, plaintiff experienced abdominal pain and loss of appetite. (R. 145-151). She was chronically nauseous and became dehydrated. (R. 152-55, 159). By May 5, 1993, plaintiff had lost a significant amount of weight, going from 125 pounds prior to surgery, to 95 pounds just four months later. (R. 159). Despite laboratory and clinical testing, the etiology for plaintiff's complaints could not be determined. (R. 154-58, 164, 168). As of August 20, 1993, plaintiff weighed just 85 pounds. (R. 173). Her abdominal pain seemed to increase after she ate. (R. 173).

  On August 22, 1993, plaintiff's diabetes was uncontrolled, with her blood sugar at 303. (R. 175). It is unclear from the notes whether plaintiff's doctor had taken her off insulin or she had stopped taking it herself. (R. 175). By September 13, 1993, plaintiff's weight began to increase, up to slightly over 99 pounds. (R. 177). She continued to suffer chronic abdominal pain, however. (R. 177). On November 9, 1993, plaintiff was placed on "regular insulin." (R. 178). Plaintiff was still complaining of abdominal pain on December 13, 1993, but her weight had increased to 101 pounds. (R. 180).

  She continued to suffer severe pain into the following year. (R. 186). On January 25, 1994, a colonoscopy revealed no polyps, masses, ulcerations, or other abnormalities. (R. 189). An upper GI and small bowel study performed on March 23, 1994, revealed evidence of possible scarring in the antral and pyloric channel,*fn1 and delayed gastric emptying; the study was interpreted as "intrinsically negative." (R. 195). Through the month of April 1994, plaintiff's pain subsided and she continued to gain weight. (R. 196-97). Thereafter, her complaints of pain continued sporadically, but by April of 1995, she weighed 117 pounds, nearly what she weighed prior to surgery. (R. 212).

  On May 8, 1996, Norton Knopf, Ph.D., performed a psychological evaluation of plaintiff at the request of the state disability agency. (R. 215-24). He noted that plaintiff's complaints were abdominal pain, diabetes, and hypertension. (R. 215). Plaintiff also claimed to be depressed and anxious, and said she had trouble with her memory. (R. 215). Dr. Knopf indicated that plaintiff was mildly anxious, but that her affect was appropriate. (R. 216). Plaintiff claimed to sometimes hear voices. (R. 216). She could remember five digits forward and three backward. (R. 216). Dr. Knopf felt plaintiff's intellect was in the low average range. (R. 216). Her abstract thinking was intact, and she could perform simple mathematics. (R. 217). Her judgment was good. (R. 218). Plaintiff claimed to suffer from insomnia. (R. 217). Dr. Knopf characterized plaintiff's personality as dependent and histrionic. (R. 218). His diagnosis was adjustment disorder with mixed anxiety and depressed mood, and a pain disorder with psychological factors. (R. 218). Testing revealed plaintiff's full scale IQ to be 83, which was low average range. (R. 220). Plaintiff exhibited poor spatial visualization and visual-motor capability, and a habit of working slowly. (R. 220). Dr. Knopf was of the opinion that plaintiff was capable of performing work related activities, but was significantly limited in her ability to understand, remember and carry out complex job instructions, and somewhat limited in her ability to function independently; deal with work stress; maintain attention, concentration and persistence; follow detailed instructions; and behave in an emotionally stable manner. (R.221-24).

  Over the next two years, plaintiff continued to gain weight. By July of 1996, she weighed 154 pounds. (R. 388). She continued to sporadically suffer abdominal pain and nausea, and exams and tests continued to reveal no etiology. (R. 371-78, 381). In March of 1997, physicians arrived at a diagnosis of gastritis, and prescribed Prilosec. (R. 365-68). While plaintiff continued to seek treatment for abdominal pain from time to time, her weight was no ...


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