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McDowell v. Commissioner of Social Security

April 9, 2010


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


Before the Court are Plaintiff's Motion for Summary Judgment (Doc. 11) and Defendant's Motion for Summary Affirmance (Doc. 13). For the reasons set forth below, Plaintiff's Motion is DENIED and Defendant's Motion is GRANTED.


I. Procedural History

Plaintiff applied for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) alleging an onset date of June 1, 2002 (Tr. 63) due to interstitial cystitis, renal stone disease, and depression (Tr. 103). The claim was initially denied (Tr. 46) and upon reconsideration (Tr. 51). Plaintiff requested a hearing before an Administrative Law Judge (ALJ) (Tr. 54). ALJ Melvin A. Padilla denied her claim on January 22, 2007 (Tr. 28-42). Her request for review was denied by the Appeals Council on January 23, 2008, rendering the ALJ's decision final (Tr. 6). This lawsuit follows.

II. Medical History

In January, 2004, Dr. Mary Lou Zwiesler, Plaintiff's family doctor indicated that she has been under her care since 1993, although she had not examined Plaintiff in over a year (Tr. 445). The doctor noted that Plaintiff had a long history of renal stone disease and had a recent diagnosis of interstitial cystitis (Tr. 445). Dr. Zwiesler stated that the renal stone disease and interstitial cystitis were being treated by a urologist, Dr. Howard B. Abromowitz (Tr.443). Dr. Zwiesler was treating Plaintiff for her depression and stated that it was stable on medication, that Plaintiff had a "bright" affect at the last examination, and that it posed no physical impairments (Tr. 443-444). It appears that Plaintiff called the doctor's office a number of times in 2004 to acquire refills on medication (Tr. 437-441).

When Plaintiff did see Dr. Zwiesler, on April 14, 2005 (related to bladder pain),*fn1 she again noted that Plaintiff's depression, while chronic was stable (Tr. 515). Dr. Zwiesler also stated in the progress note that Plaintiff reports that: she was in "a lot of pain," that her "bladder pain" is causing difficulty in caring for her children, that she is only pain free for 2 to 3 hours in the morning, that she is having a hard time with stairs, and that she is having trouble concentrating and remembering details (Tr. 515). In a May 14, 2005 letter Dr. Zwiesler outlined Plaintiff's medical condition and stated that she could not give a prognosis as to Plaintiff's urologic condition because she was not managing that condition (Tr. 433). She did state, however, that the prognosis of Plaintiff's depression (which she was treating) "is good for continued good functioning on the Effexor." (Tr. 433).

Nonetheless, Dr. Zwiesler stated that she believes Plaintiff is "disabled totally" because she only has a few hours of pain free days and because she has told the Doctor that she has decreased concentration (Tr. 434). In the doctor's opinion, this lack of concentration and a self-reported forgetfulness regarding details would negatively affect any job she may attempt (Tr. 434).

On August 2, 2005, Plaintiff called in to complain of pain and request pain medications (Tr. 514). She cancelled two appointments in September, 2005 (Tr. 513) and over the next few months either called her doctor to request refills on prescriptions or cancelled/missed appointments (Tr. 508-514). The next time that she saw Dr. Zwiesler was on March 9, 2006 because of insomnia (she prescribed Ambien) (Tr. 507).

Dr. Abromowitz has been treating Plaintiff since January, 1997 (Tr. 377). In his opinion (as of March 22, 2005):

Kristen has certainly been troubled with significant medical problems.

She has significant renal stone disease and has multiple renal stones bilaterally. This will be an ongoing problem. In terms of her interstitial cystitis this does flare up multiple times. She is much improved over what she was but holding down an eight hour a day job will be quite difficult. There are some potential jobs that she potentially could hold but those jobs would require frequent bathroom privileges and breaks and most employers would not be willing to have an employee that would require this much time off. She requires intermittent intervention for her stone disease as well as her interstitial cystitis again making her a less than ideal employee (Tr. 378).

On March 14, 2002, May 9, 2002, June 27, 2002, November 5, 2003, August 6, 2004, September 14, 2004, November 16, 2004, November 2, 2005, and February 7, 2006, Plaintiff was examined by Dr. Abromowitz who noted no apparent physical distress at those times (Tr. 235, 249, 259, 276, 387, 463, 465, 472, 480). Plaintiff underwent hydrostatic bladder dilation procedures, which provided her relief, on June 27, 2002 (Tr. 255), October 5, 2003 (Tr. 273), July 29, 2004 (Tr. 462), November 15, 2004 (Tr. 467), March 3, 2005 ...

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