Gemmell v. Colvin
| Decision Date | 23 September 2015 |
| Docket Number | No. 8:14-CV-357,8:14-CV-357 |
| Parties | DUNCAN A. GEMMELL, Plaintiff, v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Northern District of New York |
MARK A. SCHNEIDER, ESQ.
FERGUS J. KAISER, ESQ.
MEMORANDUM-DECISION AND ORDERPlaintiff Duncan A. Gemmell ("Gemmell") brings this action pursuant to 42 U.S.C. § 405(g) seeking review of a decision by the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits ("DIB") under the Social Security Act ("Act"). Gemmell moves for a finding of disability, and the Commissioner cross moves for a judgment on the pleadings. Dkt. Nos. 10, 11. For thefollowing reasons, this matter is remanded.
Gemmell, born on June 18, 1967, applied for DIB on August 30, 2010, alleging a disability onset date of August 3, 2009. T. 65.1 That application was denied on January 24, 2012. Id. at 66-71. Gemmell requested a hearing before an administrative law judge ("ALJ"), and a hearing was held on February 4, 2013. Id. at 74-75, 85-105. In a decision dated March 18, 2013, ALJ Dale Black-Pennington held that Gemmell was not entitled to disability benefits. Id. at 15-29. Gemmell filed a timely request for review, and on March 5, 2014, after reviewing additional evidence, the Appeals Council denied Gemmell's request,2 making the ALJ's findings the final decision of the Commissioner. Id. at 1-7. This action followed.
Gemmell testified that he last worked as a dairy farmer from 2008 to sometime in 2009. T. 45. He also did farm labor from 1997 until 2009. Id. Gemmell stated that he ceased working on the dairy farm in 2009 because the chemicals and dust in the air at the farm caused him to have difficulty breathing. Id. He lost his job at the dairy farm during the time that he was hospitalized for lung surgery. Id. Gemmell has not looked for other work since then because "[d]airy farm[ing] is all [he] know[s] how to do." Id. He does not participate in any volunteer work. Id. at 46.
Gemmell stated that his breathing problems limit his ability to work because "[a]ny exercise, movement, climbing, [or] walking" causes him to lose his breath. T. 46. He experiences shortness of breath when he walks, does "movements," and while he sleeps. Id. at 48. He stated that he cannot sleep through the night because of coughing and wheezing fits, and only sleeps about six hours each night. Id. He can walk for about ten or fifteen minutes before losing his breath. Id. at 46-47. He can stand in one place for fifteen or twenty minutes, and sit for fifteen or twenty minutes at a time. Id. at 47-48. Gemmell can also bend, stoop, and squat. Id. at 47. He has normal use of his hands and can lift about fifty pounds. Id. at 48. He is not in pain and has no other lim itations besides his breathing difficulties. Id. at 46. At the time of the hearing, Gemmell testified that he was using two inhalers, one of which was a rescue inhaler. Id. The other inhaler had been recently prescribed to him, but his insurance did not cover it. Id. He previously used an oxygen tank at home, but stopped in June 2012 when he moved and had to return the tanks. Id. at 46-47. At the time of the hearing, he did not have a current prescription for oxygen tanks. Id. at 47.
Gemmell is able to tend to his own personal hygiene, including bathing, combing his hair, and dressing himself. T. 49. He cooks for himself occasionally when his wife is not home. Id. He does not do many chores around the house, but does do laundry at home about once per week. Id. He does not grocery shop, and stated that his twenty-one-year-old son tends to the gardening and housekeeping outside of the house. Id. at 49-50. He used to enjoy hunting and fishing but stopped participating in those hobbies in 2006 or 2007. Id. at 50. He is not a member of any community group or other organization. Id.
Gemmell's treatment notes from Ticonderoga Health Center begin on January 14, 2000 and end on March 10, 2008. T. 239, 258. Gemmell's early treatment notes indicate that he attempted to quit smoking on multiple occasions. See id. at 255 (); id. at 243 (); id. at 242 (). Gemmell received treatment for groin pain on December 23, 2004. Id. at 246. He also received treatment at Ticonderoga Health Center for injuries sustained on the job on October 23, 2007. Id. at 240. He also received treatment for lower back pain on March 5, 2007, and for a plantar wart in August and September 2005, and August 2006. Id. at 243-45.
On June 25, 2009, Dr. Daniel M. Doyle, M.D. evaluated Gemmell for complaints of dyspnea;4 chest discomfort; and abnormal imaging studies, subsequent to Gemmell's emergency room visit two days prior. T. 303. Dr. Doyle noted that Gemmell had a significant smoking history of smoking two packs of cigarettes per day for twenty years. Id. Dr. Doyle also noted that Gemmell had been seen at the Berkshire Medical emergency room ("ER") in May 2009, where a CT scan of his chest revealed bilateral hilar and mediastinal adenopathy,5 and interstitial lung "filtrates."6 Id. Gemmell received antibiotics at the emergency room, but his condition did not improve. Id. He received an Advair inhaler on May 12, 2009, but his condition still did not improve. Id. Dr. Doyle noted that Gemmell has "significant exertional dyspnea," becomes breathless after walking fifty feet, and gets tired when he lifts heavy objects. Id. Despite these complaints, Dr. Doyle noted that Gemmell continued to work. Id. Gemmell had reported that his dyspnea was completely resolved on May 28, 2009, but a subsequent CT scan showed no significant changes. Id. At the time of Dr. Doyle's examination, Gemmell reported some wheezing. Id. Dr. Doyle suspected that Gemmell may suffer from sarcoidosis or hypersensitivity pneumonitis. Id. at 304.
On July 6, 2009, Gemmell underwent a pulmonary function test. T. 269. Dr. Boris A. Murillo, M.D. found that Gemmell's FVC and FEV1 levels7 were mildly reduced, and the FEV1/FVC ratio was normal. Id. Dr. Murillo opined that Gemmell had "a mild ventilatory defect on a restrictive basis" but did not identify the specific defect causing Gemmell's breathing issues. Id. Two days later, Gemmell visited Dr. Murillo again, complaining of shortness of breath. Id. at 273. Dr. Murillo noted that "by spirometry alone, total lung capacity was normal." Id. Dr. Murillo further opined that Gemmell had "a significant history of interstitial lung disease with evidence of gas exchange impairment," and that he likely suffers from either asthma or chronic obstructive pulmonary disease ("COPD"). Id.
Gemmell saw Dr. Murillo again on July 28, 2009, complaining of shortness of breath with any amount of activity, and difficulty breathing after walking approximately fifty steps. T. 267. Dr. Murillo noted that Gemmell was trying to quit smoking, but was currently smoking approximately two packs of cigarettes per day. Id. Dr. Murillo opined that Gemmell suffered from exertional dyspnea and pleuritic chest pain. Id. at 268. Dr. Murillo also noted that Gemmell's CT scan exhibited interstitial changes, and hilar and mediastinal adenopathy. Id. He suggested that Gemmell undergo a VATS8 procedure so that additional lung tissue could be obtained. Id.
Gemmell underwent a VATS procedure, performed by Dr. Michael R. DiSiena, D.O., on August 4, 2009. T. 264. Results from the procedure and subsequent testing indicatedthat Gemmell suffered from desquamative interstitial pneumonitis ("DIP")9 and respiratory bronchiolitis with interstitial lung disease. Id. at 265. Gemmell saw Dr. Murillo again on August 18, 2009. Id. at 410. Dr. Murillo noted Gemmell's previous diagnosis of interstitial lung disease, and that Gemmell's biopsy from the VATS procedure indicated DIP. Id. Dr. Murillo also noted that Gemmell had mediastinal adenopathy, obstructive lung disease, COPD with question of bronchial hyperresponsiveness, and a vocal chord abnormality that would need a biopsy. Id. Dr. Murillo advised Gemmell to return for a follow-up appointment, but the records indicate that August 18, 2009 was the last time Gemmell received treatment at Berkshire Medical Center. See id.
Gemmell first received treatment at Fletcher Allen Health Care on August 18, 2011. T. 441-42. On that date, Gemmell underwent pulmonary function testing that showed normal oxygen saturation on room air at rest, and significant desaturation with exercise. Id. at 439-40. Gemmell's oxygen saturation improved on 3 LPM supplemental oxygen and a reduced walk distance of 400 feet. Id. at 440. Dr. Charlotte C. Teneback, M.D. interpreted the pulmonary function test findings and found that there were no significant changes as compared to spirometry testing performed in 2009. Id. at 442. Dr. Teneback noted that Gemmell had not received any pulmonary care since the summer of 2009. Id. at 441. Gemmell reported that he did not notice any change in his symptoms since that time. Id.Additionally, Gemmell reported that he coughed frequently, especially in the morning, wheezed exertionally and at night when he lay down, and experienced shortness of breath upon exertion. Id. Gemmell also reported using Advair twice per day and Albuterol four times per day, although he stated that the medications did not improve his symptoms. Id. Dr. Teneback found that Gemmell suffered...
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