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Cathy A. Mccallister v. Michael J. Astrue

February 10, 2011

CATHY A. MCCALLISTER, PLAINTIFF,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge:

E-FILED

Thursday, 10 February, 2011 05:50:59 PM

Clerk, U.S. District Court, ILCD

OPINION

Plaintiff Cathy A. McCallister appeals from the denial of her application for Social Security Disability Insurance Benefits and Supplemental Security Income (collectively "Disability Benefits") under Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 416(I), 423, 1381a, and 1382c. This appeal is brought pursuant to 42 U.S.C. §§ 405(g) and 1383(c). McCallister has filed a Brief in Support of Complaint (d/e 11), and Defendant Commissioner of Social Security has filed a Motion for Summary Affirmance (d/e 15) and accompanying Memorandum (d/e 16). The parties consented, pursuant to 28 U.S.C. § 636(c), to have this matter proceed before this Court. Consent to Proceed Before a United States Magistrate Judge, and Order of Reference entered July 8, 2010 (d/e 10).

For the reasons set forth below, the Decision of the Commissioner is affirmed.

STATEMENT OF FACTS McCallister was born on May 16, 1954. She completed the eleventh grade. She obtained a GED high school equivalency certificate in 1981. Answer to Complaint (d/e 8), attached Certified Copy of Transcript of Proceedings before the Social Security Administration (R.), at 30. She worked as a welder, a packer for a food manufacturer, and a packing machine operator. She also secured a certification as a nurse's aid, but the certification has since lapsed. She also has certification as a welder. R. 30.

McCallister filed her application for Disability Benefits on February 2, 2007. She alleged that she became disabled on October 13, 2004, when she underwent gastric bypass surgery. R. 33. Since then she has suffered from severe abdominal pain, chest pain, fatigue, hypertension, depression, GERD, and insulin-dependent diabetes mellitus. Her last day of work was June 13, 2005. R. 31. She has thereafter received long-term disability payments of $816 twice a month from her last employer. R. 28 She also has still been covered by her last employer's health insurance. R. 29.

McCallister is five feet five inches tall. She weighed approximately 269 pounds at the time of her gastric bypass surgery in 2004. Her weight dropped to approximately 100 pounds in the following year. R. 389-90. Thereafter, her weight has fluctuated between 110 pounds and 140 pounds.

Dr. Timothi Beth, D.O., has been McCallister's primary care physician since some time before November 2004. R. 625. Dr. Beth has seen McCallister regularly for her various health problems. See R. 553-647, 673-690. In March 2005, McCallister went to Blessing Hospital in Quincy, Illinois, complaining of poor oral intake, nausea, and vomiting. R. 199.

Dr. Beth saw McCallister while she was at the hospital. Dr. Beth referred McCallister to the University of Missouri Hospital in Columbia, Missouri (U of M Hospital). R. 199.

Between September 2005 and June 2006, McCallister was seen by doctors at U of M Hospital. R. 313-62. On September 20, 2005, McCallister was admitted at the U of M Hospital with persistent nausea, vomiting, and vitamin/malnutrition. R. 314-17. She weighed 126 pounds at the time. R. 317. A gastronomy tube was surgically implanted at that time.

R. 317. She returned on October 6, 2005, as an outpatient and reported that she ate well for a few days, but then could take nothing by mouth.

R. 328. The doctors recommended increasing the amount of liquid nutrition (referred to as "Boost plus") and to continue her vitamins. R. 329.

On November 30, 2005, McCallister stopped using the tube to take nutrition, but she was tolerating most foods and her pain was drastically improved with Percocet and Amitriptyline. R. 334-36. On March 1, 2006, McCallister was tolerating food much better and her weight had stabilized at approximately 115 pounds. McCallister reported that she had no more vomiting or nausea at this time. R. 340. The feeding tube was removed at this time. R. 341. On May 31, 2006, she reported continuing abdominal pain, but the pain was not associated with meals. R. 343. She was tolerating food and her weight was up to 123 pounds. R. 342-43.

McCallister went to the hospital repeatedly for her abdominal pain. She usually went to Blessing Hospital in Quincy, Illinois. She was hospitalized for one day in March 2005 (R. 198-208); six days in June 2005 (R. 209-22); two days in July 2005 (R. 223-33, 451-55); seven days in August 2005 (R. 234-49); six days in November 2005 (R. 250-62, 479-81); four days in May 2006 (R. 263-73, 482-84); three days in June-July 2006 (R. 274-82); another day in July 2006 (R. 283-91); two days in August 2006 (R. 292-302); three days in September 2006 (R. 303-12); twice for two days each in October 2006 (R. 363-68, 369-86); two days in May 2007 (R. 436-50, 464-65); and seven days in August 2007 (R. 531-52).

On April 21, 2007, McCallister went to see Dr. Raymond Leung, M.D., for a consultative examination. Dr. Leung noted that McCallister had diabetes, high blood pressure, and history of gastric bypass surgery and obesity. He also noted McCallister's complaints of abdominal pain. McCallister weighed 126 pounds at the time of the visit. Dr. Leung found that the abdomen was non-tender on examination. The examination was otherwise unremarkable. R. 391.

On April 30, 2007, McCallister went to see agency psychologist Dr. Frank Froman, Ed.D., for a mental status examination. R. 392-95. Dr. Froman diagnosed major depressive disorder, recurrent, secondary to her medical problems. R. 394. He assigned a Global Assessment of Functioning (GAF) of 65, which indicated mild symptoms or limitations at the time of the examination. R. 394. Dr. Froman opined that because of the "cyclic nature of her 'pain syndrome,' it is unlikely that she would be able to maintain steady employment . . . ." R. 394.

On May 7, 2007, psychologist Dr. Phyllis Brister, Ph.D., prepared a psychiatric review and Mental Residual Functional Capacity Assessment of McCallister. R. 409-26. Dr. Brister stated that McCallister suffered from a major depressive disorder, secondary to her medical conditions. R. 412. Dr. Brister opined that McCallister had mild restrictions on activities of daily living; mild difficulties in maintaining social functioning; moderate difficulties maintaining concentration, persistence, or pace; moderate limitations in understanding and remembering detailed instructions; and moderate limitations in carrying out detailed instructions. R. 419. 423. Dr. Brister concluded regarding McCallister:

52 year old female assessed under DX Major Depression 2nd GMC. She remains cognitively intact and able to understand, recall and execute at least simple operations of a routine, repetitive nature. Social and adaptive skills grossly preserved. Capable simple SGA.

R. 425.*fn1

On May 9, 2007, Dr. Michael Nenaber, M.D., ...


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