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Earl Nix, Jr v. Michael J. Astrue

September 18, 2012

EARL NIX, JR., PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Susan E. Cox

MEMORANDUM OPINION AND ORDER

Plaintiff Earl Nix, Jr. seeks judicial review of a final decision denying his application for Disability Insurance Benefits and Supplemental Security Income benefits ("disability benefits") under Titles II and XVI of the Social Security Act.*fn1 Mr. Nix is seeking a judgment reversing or remanding the Commissioner's final decision [dkt. 13] and the Commissioner seeks a judgment affirming his decision. For the reasons set forth below, Mr. Nix's motion is granted [dkt. 13].

I. Procedural History

On February 5, 2008, Mr. Nix filed his application for disability benefits alleging a period of disability beginning December 6, 2007.*fn2 He alleged neuropathy, diabetes and pancreatic cysts that resulted in constant pain whether sitting or standing, difficulty walking, and the inability to lift weights or reach overhead.*fn3 Mr. Nix's claim was initially denied on March 20, 2008.*fn4 Mr. Nix then filed a request for reconsideration on May 15, 2008, which was denied on September 15, 2008.*fn5 On November 3, 2008, Mr. Nix requested a hearing before an Administrative Law Judge ("ALJ"), which was granted.*fn6 A hearing took place before ALJ Janice Bruning on January 12, 2010. The ALJ issued an unfavorable decision on March 4, 2008, finding Mr. Nix was not disabled from December 6, 2007 through the date of the decision.*fn7 Mr. Nix then filed a request for review of the ALJ's decision with the Social Security Appeals Council, which was denied on July 27, 2011.*fn8 The Commissioner rendered a final decision accepting the ALJ's ruling on Mr. Nix's disability claim.*fn9 On September 30, 2011, after the Appeals Council granted an extension of time, Mr. Nix filed this action.

II. Background

Mr. Nix was born on July 15, 1961 and was fifty years old at the time of his application for disability benefits.*fn10 He stood at six feet, four inches, and weighed 160 pounds.*fn11 At the time, Mr. Nix's highest level of education was two years of college.*fn12 Prior to his filing for disability in 2008, Mr. Nix held jobs as a mailroom coordinator and coached basketball as a hobby.*fn13 The facts set forth below are derived from the administrative record and provide a review of Mr. Nix's medical history, ALJ hearing, and the ALJ's decision.

A. Medical Evidence Prior to February 2008 Disability Filing

In January 2003, Mr. Nix was treated for hypertension and high blood pressure by Michael G. Dunleavy, D.O., Mr. Nix's primary care physician.*fn14

In February, Mr. Nix was treated for cellulitis and a bulge in the back of his ankles.*fn15 In May, blood work by the St. Alexius Medical Center showed that Mr. Nix had chronic elevated blood sugar indicative of diabetes.*fn16 Dr. Dunleavy placed Mr. Nix on diet restrictions and prescribed medication.*fn17 In August, Dr. Dunleavy saw Mr. Nix for pain in the abdomen due to cysts forming in the intestines.*fn18 He also treated Mr. Nix for foot pain, and swelling.*fn19 In September, Dr. Dunleavy treated Mr. Nix for intestinal cysts resulting in pain in the abdomen, diarrhea, and high blood pressure.*fn20 In October, Dr. Dunleavy treated Mr. Nix for abdominal pain, and referred him to Melva Cohen, M.D., for an assessment of his abdomen.*fn21

The assessment of his abdomen revealed an "ascending colon" with moderate chronic inflammation.*fn22 Dr. Dunleavy treated Mr. Nix in November and December for abdominal pain due to intestinal cysts.*fn23

In June 2006, Dr. Dunleavy saw Mr. Nix for possible exposure to a sexually transmitted disease.*fn24 On September 13, 2006, Mr. Nix was referred by Dr. Dunleavy to spine specialist, Bruce J. Montella, M.D., for evaluation for a fractured clavicle.*fn25 Dr. Montella reported that Mr. Nix was showing satisfactory healing.*fn26

In early September 2007, Mr. Nix was hospitalized for pancreatitis.*fn27 At a follow up on September 19, 2007, Dr. Dunleavy noted that Mr. Nix was suffering from acute pancreatitis, sudden onset inflammation of the pancreas,*fn28 diabetes mellitus ("DM") Type II, insufficient secretion of insulin,*fn29 and mixed hyperlipidemia, elevated concentration of fat in the blood stream.*fn30 Based on his analysis, Mr. Nix was restricted from work until October 15, 2007.*fn31
On October 10, 2007, Mr. Nix was treated for difficulty sleeping and tenderness or pain in the abdomen.*fn32 Dr. Dunleavy noted the patient's condition as gradually "improving" but that Mr. Nix "still had pain" and "difficulty sleeping."*fn33 On October 19, 2007, an x-ray of the abdomen by Bennett S. Park, M.D., revealed acute pancreatitis and Dr. Dunleavy restricted Mr. Nix from work until November 13, 2007.*fn34 At a follow-up on October 24, 2007, Dr. Dunleavy assessed Mr. Nix as having unspecified anemia, acute pancreatitis, and uncontrolled diabetes.*fn35 For his pancreatitis, Mr. Nix was referred to Asad Aziz, D.O.*fn36 He was also advised to restrain from work through November 11, 2007.*fn37

On October 30, 2007, Mr. Nix was treated by Dr. Aziz who found an impression of "acute pancreatitis with pseduocyst development," abnormal cell growth on the colon, inflamation of the digestive tract, and weight loss.*fn38 The doctor also noted that Mr. Nix had a history of alcohol abuse and advised him to stop drinking.*fn39 In November, Dr. Dunleavy met with Mr. Nix and assessed him as having cellulitis, "abscess of unspecified sites," and ear swelling.*fn40 In December, Dr. Dunleavy found Mr. Nix had inflammation of a single nerve, uncontrolled diabetes, acute pain, cellulitis, pancreatic cysts, and skin tissue disturbances and was once more restricted from work.*fn41

In January of 2008, Andrew Gordon, M.D., conducted a nerve study test on Mr. Nix which came back abnormal with an impression of axonal nerve damage affecting the lower extremities.*fn42

An evaluation by Diabetes Specialist, L. Fernando Soruco, M.D., on January 21, 2008, showed an impression of diabetes "most likely with significant insulin deficiency" and a "random Accu-Chek of 250."*fn43 Dr. Soruco also found severe painful neuropathy with marked weight loss and muscle wasting.*fn44 He also believed Mr. Nix to likely have amyotrophic diabetic neuropathy ("instead of affecting the ends of nerves, like peripheral neuropathy, diabetic amyotrophy affects nerves in the thighs, hips, buttocks or legs").*fn45 On January 28, 2008, Mr. Nix next met with neurologist V.K. Gupta, M.D., who assessed him as having painful symmetrical peripheral neuropathy and diabetes most likely caused by alcohol abuse.*fn46 Dr. Gupta conducted a motor examination, finding his motor was 5/5 throughout (normal), there was atrophy of the muscles of the feet and calves, pain in both ankles, and a "normal-based" gait.*fn47 The doctor noted that Mr. Nix claimed to feel "unsteady when closing his eyes."*fn48 The sensory examination revealed that Mr. Nix had decreased sensations to pinprick and touch up to the ankles in the lower extremities, and in the fingers of the upper extremities.*fn49 Dr. Gupta also noted a decreased in vibratory sensations.*fn50

B. Medical Evidence After February 2008 Disability Filing

On February 7, 2008, Dr. Dunleavy filled out an attending physician statement for a long term disability claim, listing Mr. Nix's diagnoses as painful neuropathy and diabetes.*fn51 Due to the conditions and the increasing dosages of pain medication necessary to treat his conditions, Dr. Dunleavy concluded that Mr. Nix would be unable to safely perform his job.*fn52 In terms of patient capability, the doctor listed that Mr. Nix could sit for up to four hours, stand intermittently up to two hours, and walk intermittently up to two hours.*fn53 Mr. Nix could also reach above shoulder level, operate a motor vehicle, and lift up to ten pounds frequently with no pulling or pushing capabilities.*fn54 On February 12, Dr. Dunleavy treated Mr. Nix for DM, mononeuritis, inflammation of a single nerve,*fn55 and "pain in joint involving ankle and foot."*fn56 On February 18, 2002, Dr. Soruco reevaluated Mr. Nix and found his diabetes had improved and was controlled by medication, and his neuropathy was improved.*fn57 The doctor prescribed a higher dose of medication for his neuropathy.*fn58 In March and April, Dr. Dunleavy treated Mr. Nix for unspecified blepharitis, inflammation of the eyelids,*fn59 and nerve pain associated with diabetes.*fn60

On March 14, 2008, Frank Jimenez, M.D., in his capacity as medical consultant for the Social Security Administration, performed a Physical Residual Functional Capacity ("RFC") Assessment on Mr. Nix. Dr. Jimenez assessed Mr. Nix as being able to occasionally carry twenty pounds, frequently carry ten pounds, stand or walk for about six hours a day, sit with normal breaks for about six hours, and push or pull but was unable to climb ladders, ropes and scaffolds.*fn61

On June 16, 2008, Dr. Dunleavy assessed Mr. Nix as having nerve pain associated with diabetes.*fn62 Dr. Dunleavy noted that Mr. Nix's gait was "limping, slow and cautious."*fn63 He filled out a second attending physician statement for long term disability on June 17, noting that Mr. Nix's pain had moved to his arms, which prevented Mr. Nix from safely performing his job.*fn64 He further opined that Mr. Nix could sit for a maximum of four hours and stand or walk for a maximum of two hours, all intermittently.*fn65 Mr. Nix could lift up to ten pounds frequently, and up to twenty pounds occasionally.*fn66 On June 21, Dr. Dunleavy treated Mr. Nix for inflammation of the eyelash follicles and nerve pain associated with diabetes.*fn67
On September 12, 2008, Charles Kennedy, M.D., in his capacity as state consultant, reviewed and affirmed Dr. Jimenez's residual function capacity test in light of additional evidence from Dr. Dunleavy.*fn68 In October, Dr. Dunleavy filled out a physician's evaluation indicating that Mr. Nix's ability to sit, stand or walk had deteriorated to less than two hours with normal breaks, and Mr. Nix would be required to take up to eight five-minute breaks per eight hour work day, and be absent from work more than four days a month.*fn69 He relied on the EMG nerve study test which found motor degeneration of the axonal nerves in Mr. Nix's lower extremities.*fn70 Dr. Dunleavy noted that Mr. Nix's pain had progressed to the point of hypersensitivity to the slightest stimulant, making it impossible for Mr. Nix to work.*fn71

On June 13, 2009, Mr. Nix was admitted to St. Alexius Medical Center reporting pain, nausea and vomiting.*fn72 Yelena Shanchuk, M.D., noted in her discharge diagnoses that Mr. Nix suffered from recurrent pancreatitis, diabetes, high fat levels in the blood, and high blood pressure.*fn73

She also assessed that Mr. Nix had abdominal pain "secondary to pancreatitis" and atypical chest pain.*fn74 Dr. Shanchuk noted Mr. Nix was discharged with pain and insulin medication.*fn75 Victoria Marsik-Castillo, M.D., performed an abdominal ultrasound on Mr. Nix's upper body, and found no abnormalities in the liver, pancreas or gallbladder.*fn76 David Albritton, M.D., did a comparison of Mr. Nix's abdomen and pelvis to a 2007 study and found mild pancreatitis and bulging sacs in the colon.*fn77 Shilpa Mehta, M.D., examined Mr. Nix and found no evidence of bowel obstruction.*fn78 Carl Albun, M.D., examined Mr. Nix for pancreatitis, and made an impression of pancreatitis and high ...

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