Dornack v. Apfel
| Decision Date | 16 February 1999 |
| Docket Number | Civ. No. 97-2897 (JMR/RLE). |
| Citation | 49 F.Supp.2d 1129 |
| Parties | Marikay DORNACK, Plaintiff, v. Kenneth C. APFEL, Commissioner of the Social Security Administration, Defendant. |
| Court | U.S. District Court — District of Minnesota |
Fay E. Fishman, Minneapolis, MN, for plaintiff.
Roylene A. Champeaux, Asst. U.S. Atty., Minneapolis, MN, for defendant.
1. That the Plaintiff's Motion for Summary Judgment [Docket No. 5] is denied.
2. That the Defendant's Motion for Summary Judgment [Docket No. 10] is denied.
3. That the matter is remanded to the Commissioner for further proceedings in accordance with the views expressed in this Report.
4. That, pursuant to the holding in Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), Judgment is entered accordingly.
The Plaintiff commenced this action, pursuant to Section 205(g) of the Social Security Act, Title 42 U.S.C. § 405(g), seeking a judicial review of the Commissioner's final decision which denied her application for Disability Insurance Benefits ("DIB"). The matter is presently before the Court upon the parties' Cross-Motions for Summary Judgment. For these purposes, the Plaintiff has appeared by Fay E. Fishman, Esq., and the Defendant has appeared by Roylene A. Champeaux, Assistant United States Attorney.
For reasons which follow, we recommend that the Defendant's Motion for Summary Judgment be denied, that the Plaintiff's Motion be denied, and that the matter be remanded to the Commissioner for further proceedings consistent with this Report.
The Plaintiff protectively filed an application for DIB on March 3, 1995, alleging that she became disabled on June 3, 1994, as a result of a Chronic Fatigue Syndrome ("CFS").1 The Plaintiff met the insured status requirements for DIB through December 31, 1999. Her claim was denied upon initial review and, once again, upon reconsideration.
On July 27, 1995, the Plaintiff requested a Hearing before an Administrative Law Judge ("ALJ") and, on January 2, 1997, a Hearing was conducted, at which the Plaintiff appeared personally, and by legal counsel. Thereafter, on February 3, 1997, the ALJ issued a decision which denied her claim for benefits. The Plaintiff requested administrative review before the Appeals Council which, on July 5, 1997, declined to review the matter further. Thus, the ALJ's determination became the final decision of the Commissioner. Johnson v. Chater, 108 F.3d 942, 943-44 (8th Cir.1997); Browning v. Sullivan, 958 F.2d 817, 821 (8th Cir.1992); 20 C.F.R. § 1481. This action was commenced on August 8, 1997.
A. Factual Background. The Plaintiff has past work experience as an early childhood teacher. [T. 294]. At the time of the Hearing, she was forty years old, possessed a high school degree, a college degree, and a Masters degree in early childhood special education. [T. 48, 294] As related by the Plaintiff, she suffers from CFS.
The Plaintiff alleges that she has been disabled by CFS since June 3, 1994. [T 60]. The medical record establishes that the Plaintiff first reported nausea, vertigo, and headaches, on March 5, 1991, when she presented herself to Dr. J. Bieraugel. [T. 168]. Dr. Bieraugel prescribed Antivert,2 and suggested a neurological consultation if her symptoms did not improve. Id. She returned to Dr. Bieraugel for a physical examination the following week. [T. 166]. She again reported nausea and vertigo, despite her use of Antivert. Id. She also noted visual disturbances, and an increase in her symptoms if she attempted to read or move about. Id. Dr. Bieraugel diagnosed her with vertigo, ordered an magnetic resonance imaging scan ("MRI"), and referred her for a neurological examination. Id.
The neurological examination, and the MRI scan, were normal. [T. 164, 166]. On March 19, 1991, the Plaintiff reported, after initially disclaiming any ringing in her ears, that she had developed such ringing. [T. 164].
On April 8, 1991, the Plaintiff underwent a neurological examination by Dr. David Webster. [T. 162-63]. The Plaintiff reported headaches and blurred vision, but she denied vertigo or difficulty with balance. [T. 162]. During her examination, the Plaintiff described "icepick," right-sided headaches, pressure in her head and eyes, fuzzy vision, ringing in her ears, nausea, and night sweats. Id. She stated that "Dr. Bieraugel *** kept asking me if I had ringing in my ears, and finally I did get the ringing that he was talking about." [T. 1062]. She reported that her symptoms improved after taking a 10-day vacation from work. [T. 162]. Dr. Webster noted that the Plaintiff's symptoms were "vaguely described," and he opined that she would not "turn out to have any serious organic neurological disease." [T. 163]. Dr. Webster also noted that the Plaintiff's husband described her as "a hypochondriac." Id. He concluded that the Plaintiff suffered from no neurologically based disorder or disease. [T. 163]. The Plaintiff again met with Dr. Webster on June 3, 1991, when she again complained of fatigue. [T. 159]. She also expressed frustration with the doctor's inability to diagnose an organic source for her symptoms. See, id.
Dr. Webster referred the Plaintiff to Dr. Corey for an evaluation of her blood test results. [T. 157]. The Plaintiff reported that she had been "under a tremendous amount of stress recently." [T. 157]. She underwent B12 injections, but with no effect. [T. 156]. On July 18, 1991, Dr. Corey noted that all of the laboratory tests had been unremarkable, except for an elevated mean cell volume, and mild abnormalities of the blood, while her chest x-ray was normal. [T. 153]. Dr. Corey diagnosed the Plaintiff with macrocytosis,3 but he offered no treatment for it. Id. The Plaintiff's B12 therapy was discontinued as Dr. Corey noted no improvement arising from its application.
In December of 1991, after the Plaintiff's insurance coverage changed, she was evaluated on two occasions by Dr. Allan Kind. [T. 218-20]. Dr. Kind noted that the Plaintiff might have CFS. [T. 218]. She reported that the stress of fatigue made working as a teacher for handicapped children difficult. [T. 218]. She reported that her symptoms had not changed, but that she was working full-time and enjoyed working. [T. 216]. She also reported that she did not "have much achiness except some in the back and her neck," but that she became exhausted upon exertion. [T. 219]. Her husband stated that she visited her parents in Rochester, Minnesota, at least every two weeks. [T. 219]. Dr. Kind noted that CFS was "a reasonable diagnosis" for the Plaintiff, and that "it seems quite clear that she is unable to continue her full-time work." [T. 207]. He recommended reduced activity and rest, in order to see if her symptoms improved, which would followed by exercise. [T. 220].
She was not again seen by Dr. Kind until March of 1994. [T. 208]. Dr. Kind reported that it was "difficult to quantify the proportion of fatigue" that the Plaintiff experienced, but that she could not continue teaching disabled five-year-old children on a full-time basis. [T. 208]. The Plaintiff reported that she slept well if she took amitriptyline,4 but did not take it regularly. [T. 208]. She reported that over the previous Summer, when she not working, she felt better and was able to manage her condition. [T. 207]. During this visit, the Plaintiff estimated that she was functioning at 30% to 40% of her normal capacity. Id.
On June 15, 1994, Dr. Kind recommended that the Plaintiff not work for one year, in order to see if her condition improved. [T. 149]. When, on September 19, 1994, the Plaintiff reported that she did not feel much better since stopping work, Dr. Kind recommended that she not return to work in the Fall. [T. 147].
In February of 1995, she reported that she continued to have fatigue, ringing in her ears, blurred vision, and nausea. [T. 190]. She also reported that she had done "quite well" on vacation in the Cayman Islands. [T. 190, 191]. Dr. Kind noted that it was difficult to predict whether the Plaintiff would be able to return to work in the Fall. [T. 190]. He refilled her prescription for amitriptyline in order to aid her in sleeping.
On March 4, 1995, Dr. Charles Gornick, who is a State agency physician, reviewed the Plaintiff's records and concluded that she could lift up to 20 pounds occasionally, and 10 pounds frequently, could stand and/or walk six hours per day, and could sit six hours per day. [T. 138]. Dr. Gornick noted that the Plaintiff's activities were "moderately restricted" by a chronic fatigue syndrome, and that her condition was not significantly different whether she was working or not. [T. 138]. He stated that the Plaintiff's subjective symptoms had been considered and, accordingly, he restricted her to light work. [T. 142].
On March 15, 1995, Dr. Kind was questioned by a disability examiner regarding his opinion of the Plaintiff's medical condition. [T. 151]. Dr. Kind responded:
The patient has been seen within the last week or two. She came in with her husband and reported that she just doesn't have the stamina to do much of anything around the house. She is unable to handle grocery shopping as she is just too tired. She had been diagnosed with having chronic fatigue syndrome and appropriate criterion. Currently, she complains of achiness, irritability, and fatigue. She has no positive objective findings. She appears to be a straight shooter and there is no indication to contradict what she reports. She does not appear to be able to maintain a full time job, even at sedentary work, because of her fatigue.
Id...
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...onset date and by her numerous visits to health care professionals and her use of medications. Id. See also Dornack v. Apfel , 49 F. Supp.2d 1129, 1141 (D. Minn. 1999) (finding it “questionable” for the ALJ to discredit a claimant who continued working after her diagnosis of CFS because she......
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Issue Topics
...of a claimant take on special significance, as do the corresponding credibility assessments of the ALJ.” Dornack v. Apfel , 49 F. Supp.2d 1129, 1140 (D. Minn. 1999). In Dornack , the court held that based on a less than fully developed record, the ALJ discounted the claimant’s subjective co......
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Issue topics
...of a claimant take on special significance, as do the corresponding credibility assessments of the ALJ.” Dornack v. Apfel , 49 F. Supp.2d 1129, 1140 (D. Minn. 1999). In Dornack , the court held that based on a less than fully developed record, the ALJ discounted the claimant’s subjective co......
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Issue topics
...of a claimant take on special significance, as do the corresponding credibility assessments of the ALJ.” Dornack v. Apfel , 49 F. Supp.2d 1129, 1140 (D. Minn. 1999). In Dornack , the court held that based on a less than fully developed record, the ALJ discounted the claimant’s subjective co......