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Sisul v. Astrue

October 29, 2009


The opinion of the court was delivered by: Joe Billy McDADE United States District Judge


Before the court are Plaintiff's Motion for Summary Judgment, filed on February 27, 2009 (Doc. 11) and Defendant's Motion for Summary Affirmance, filed on May 12, 2009 (Doc. 13). For the reasons stated below, Plaintiff's Motion for Summary Judgment is granted in part, and Defendant's Motion for Summary Affirmance is denied.



Plaintiff Lynn Sisul filed for disability insurance benefits on May 20, 2005, alleging disability since November 1, 2004. (R. 73). Her claim was denied initially and upon reconsideration. (R. 44-47, 49-53). Following a March 21, 2008 hearing, Administrative Law Judge (ALJ) Gerard Rickert denied Plaintiff's claim. (R. 20, 416-39). On June 2, 2008, the Appeals Council denied review of the ALJ's decision, and the ALJ's decision thus became the Commissioner's final decision for purposes of 42 U.S.C. § 405(g). See 20 C.F.R. §§ 404-955, 422.210. (R. 3). On August 26, 2008, Plaintiff Lynn Sisul filed a complaint seeking judicial review of the ALJ's decision in federal court.


A. History of Crohn's Disease

Plaintiff was originally diagnosed with Crohn's disease*fn1 in October 2003. (R. 267). On July 31, 2004, Plaintiff was admitted to the hospital, having an acute flare-up*fn2 of Crohn's disease, acute diarrhea with blood and mucus, and abdominal pain; she was discharged on August 2, 2004. (R. 213). Dr. Lauri Harsh noted that Plaintiff's followthrough with treatment had been "compromised due to lack of sufficient funds to pay for the medical treatment." (R. 213). On November 5, 2004, Plaintiff was hospitalized overnight due to abdominal pain. (R. 169). She was diagnosed with Crohn's disease involving the distal small bowel and colon, and leukocytosis. (R. 169).

In mid-November 2004, a colonoscopy was performed on Plaintiff to measure the extent of the Crohn's disease. (R. 163). "[N]o obvious disease was seen in the transverse colon or at the stomach flexure." (R. 163). Whitish exudates and shallow ulcerations were seen without any active bleeding in the left colon. (R. 163). On February 16, 2005, Plaintiff was admitted to the hospital overnight due to complaints of nausea, vomiting, and diarrhea. (R. 149). Plaintiff was characterized as "very weak." (R. 152). In December 2005, Dr. Gloria Diaz, a gastroenterologist, examined Plaintiff and reported that Plaintiff stated she had a significant increase in bowel movements the last two or three days. (R. 269).

On January 3, 2006, Plaintiff met with her treating physician, gastroenterologist Dr. Ahmad Cheema, for an evaluation. (R. 267). Dr. Cheema noted that Plaintiff reported having up to ten stools per day accompanied by abdominal pain, and nausea. (R. 267). A month later, Plaintiff again met with Dr. Cheema and reported that she was having three to four bowel movements per day and was off prednisone. (R. 265). Plaintiff denied any significant abdominal pain other than on one occassion. (R. 265). In March 2006, Plaintiff was evaluated at Gastroenterology Consultants and reported that she was only having two to three bowel movements per day and only occasional rectal bleeding. (R. 264). On June 16, 2006, Dr. Cheema met with Plaintiff and found no change from his prior evaluation.

(R. 260).

Late in June 2006, Dr. Kishore Alapati performed a fistulotomy on Plaintiff.

(R. 208-09). On July 10, 2006, Plaintiff met with Dr. Alapati for a follow-up visit; she did not report any other significant complaints and had recovered "pretty well" from her operation. (R. 258). Plaintiff reported that she did "notice some perianal discharge, but her bowel movements [had] significantly improved." (R. 258).

In early September 2006, Dr. Cheema performed a colonoscopy and found Crohn's disease, colonic ulcers, and small internal hemorrhoids. (R. 250-51). On September 20, 2006, Plaintiff again met with Dr. Cheema, who reported her examination was unchanged from his prior assessment and "she was not having significant Crohn's disease related symptomatology" at that time, which he thought was due to her recent prednisone intake. (R. 248). In October 2006, Plaintiff met with Dr. Cheema, complaining about intermittent abdominal pain and reporting four to five bowel movements per day with a small amount of blood. (R. 247).

In December 2006, Dr. Cheema completed a "Form: Crohn's & Colitis Residual Functional Capacity Questionnaire." (R. 233-36). Dr. Cheema noted that Plaintiff could tolerate moderate stress provided that she be allowed time off occasionally when she experienced a flare-up; her "experience of pain or other symptoms [was often] severe enough to interfere with attention and concentration."

(R. 234-35). Dr. Cheema reported that Plaintiff would likely be absent from work about two days per month because of Crohn's disease. (R. 233-26). Dr. Cheema opined that Plaintiff would need a job in which she could shift positions between sitting, standing, and walking at will, in which she would have ready access to a restroom, and in which she would be able to have unscheduled restroom breaks during the day. (R. 235). During the periods of Plaintiff's flare-ups, she would have little advance notice of the need to use the restroom. (R. 235). Finally, Dr. Cheema noted that Plaintiff could rarely lift 50 pounds, occasionally lift 20 pounds, and frequently lift 10 pounds or less. (R. 236).

On June 4, 2007, Plaintiff reported to Dr. Miniter, her rheumatologist, that she had been having problems with her Crohn's disease and had developed another fistula that tended to bleed. (R. 295-96). On August 6, 2007, Plaintiff was hospitalized overnight with vomiting, bloody diarrhea, and abdominal pain, due to a flare-up of her Crohn's disease. (R. 307-08). On December 5, 2007, Dr. Miniter noted that Plaintiff had problems with intermittent flare-ups of Crohn's disease, that she was off of prednisone, and that her rectal bleeding had stopped. (R. 291-92).

On January 10, 2008, Plaintiff was examined by Dr. Cheema, who reported that Plaintiff was having ongoing diarrhea, about four bowel movements per day, and had lost weight. (R. 302). Dr. Cheema also noted that no other changes in treatment were being made at that time, except that Plaintiff could take Imodium occasionally, especially to avoid having to go to the bathroom during the night. (R. 302).

B. History of Rheumatoid Arthritis

In August 2004, Dr. Susan Bird performed a bone density examination at Plaintiff's doctor's request, and found that "[t]he mineralization of the left hip fell in the normal range" and "[t]he mineralization of the lumbar spine fell in the osteopenic range..." (R. 211). Dr. Bird noted that Plaintiff was ...

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