Glenn v. Apfel

• Decision Date: 19 June 2000
• Docket Number: No. 98-4157-DES.,98-4157-DES.
• Citation: 102 F.Supp.2d 1252
• Parties: Barbara J. GLENN, Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Kansas

102 F.Supp.2d 1252

Barbara J. GLENN, Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant.

No. 98-4157-DES.

United States District Court, D. Kansas.

June 19, 2000.

Steven M. Tilton, Tilton & Tilton, LLP, Topeka, KS, for Barbara J Glenn, plaintiff.

Jackie A. Rapstine, Office of United States Attorney, Topeka, KS, for Social Security, Commissioner of, Kenneth F. Apfel, defendant.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on plaintiff's request seeking reversal of the Social Security Commissioner's denial of disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq., and supplemental security income benefits based on disability under Title XVI of the Act, 42 U.S.C. §§ 1381, et seq. The court has reviewed the administrative record and the briefs of both parties. For the following reasons, the plaintiff's request is granted, and this case is reversed and remanded for an immediate award of benefits.

I. PROCEDURAL BACKGROUND

On September 6, 1995, plaintiff filed applications for disability benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq, and supplemental security income benefits under Title XVI of the Act, 42 U.S.C. §§ 1381, et seq. Plaintiff alleged the date of disability onset was September 8, 1991. Her applications were denied initially and on reconsideration. Plaintiff then requested an administrative hearing. After the hearing, plaintiff amended her alleged onset date to December 31, 1995. On October 2, 1997, the administrative law judge ("ALJ") rendered a decision in which he found that Ms. Glenn was not under a "disability" as defined in the Social Security Act.

Plaintiff requested a review of that decision by the Appeals Council. She submitted written briefs and additional evidence to the Appeals Council, which were made part of the record. On August 15, 1998, the Appeals Council affirmed the ALJ's decision. The ALJ's decision is the final decision of the Commissioner.

II. FACTUAL BACKGROUND

Ms. Glenn was born June 30, 1946, and was fifty years old at the time of her administrative hearing. She is five foot, ten inches tall, weighs 248 pounds, and is right handed. Plaintiff obtained a GED in 1974 and completed truck driving school in 1985. She lives with her son and his family. In September 1994, plaintiff began working at Capital City Taxi. She drove a taxi full-time for three months, but had to quit due to pain. She then worked as a dispatcher full-time until October 1995. Plaintiff was missing an average of one day a week, so she switched to part-time. Plaintiff worked as a dispatcher sixteen hours a week until August 1996. In August 1996, plaintiff begin driving a taxi full-time, but only worked an average of four days a week due to pain. In February 1997, plaintiff blacked out and wrecked her taxi. She returned to dispatching twenty-four hours a week, but it was too difficult, so she restricted her hours to sixteen a week. At the time of the hearing, plaintiff worked as a dispatcher sixteen hours a week. Plaintiff's other relevant past work includes truck driver, carnival driver, tractor-trailer driver, and cashier/stocker. Plaintiff alleges disability due to chronic pain and fatigue, fibromyalgia, bad heart, chest pain, anxiety, depression, headaches, vision deficit, shortness of breath, and severe memory and concentration problems.

Plaintiff has been diagnosed with fibromyalgia, which has been described as:

[A] common, but elusive and mysterious disease, much like chronic fatigue syndrome, with which it shares a number of features.... Its cause or causes are unknown, there is no cure, and of greatest importance to disability law, its symptoms are entirely subjective.... The principal symptoms are pain all over, fatigue, disturbed sleep, stiffness, and — the only symptom that discriminates between it and other diseases of a rheumatic character — multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch.

Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir.1996). The plaintiff has all eighteen tender spots.

At the hearing, plaintiff testified that she has constant pain throughout her entire body almost every day, including back, shoulders, hands and thumbs. Her back pain has gotten worse. Swelling in her hands and feet make it difficult to use her hands and to walk. Plaintiff has numbness from the tips of her fingers to her wrist on her left hand. She has poor grip strength in both hands, and has dropped dishes. She can only lift three to five pounds ten times an hour and five to ten pounds less than ten times per day. Plaintiff has difficulty bending and stooping. She cannot sit for long periods of time, and has to get up and walk around the room when watching a television show. She can stand five minutes before she has increased pain. She can only walk one and one-half blocks before she needs to sit down. Her gait is somewhat stiff hipped, and she has pain from her hip which radiates down her leg, and sometimes she has pain in her foot.

Plaintiff also testified that she is fatigued. She spends a great deal of time in bed due to fatigue and waking up is often difficult. She has trouble sleeping throughout the night. Plaintiff falls asleep during the day in her chair and takes naps that last two to three hours during the day. Simple tasks such as taking a bath and getting dressed will cause fatigue. Plaintiff suffers frequent headaches which occur four or five times a week and last about four hours. Her headaches cause double vision. Plaintiff also has difficulty concentrating and remembering things she reads, events, appointments, and when to take her medication.

Plaintiff also suffers from depression. She testified that she is depressed because she is in pain and cannot do things for herself, cannot work, cannot have a social life, and cannot go shopping with friends. She is often too depressed to get out of bed. She does not feel like being around people, and only has two friends. The last time she thought about committing suicide was in 1996. At the time of the hearing, she didn't think she could actually commit suicide. Plaintiff is treated at Shawnee Community Mental Health Clinic for suicidal thoughts, depression, stress, anxiety and chronic pain syndrome. Although she is on medication for depression, she does not feel it helps.

When describing her daily activities, plaintiff testified that she has difficulty doing housework due to pain and fatigue. She paces herself, doing laundry and dishes in small bits at a time. She cannot carry the laundry basket or heavy pots and pans. She takes breaks while doing the dishes or vacuuming. She uses an electric cart to do her grocery shopping, and needs help carrying the groceries. She can drive, but cannot sit for very long. She has no hobbies and no longer attends bingo. She visits with one friend every week, and visits relatives only on holidays.

Plaintiff takes a variety of medications. Plaintiff takes Tylenol 3 to control the pain caused by fibromyalgia. In addition to suffering from fibromyalgia, plaintiff is a diabetic. She takes Glynase and Glucophage to control her blood sugar, and she sees a doctor once every two weeks because her condition is poorly controlled. Plaintiff has a heart condition and takes one-half aspirin a day and takes Nitrostat for chest pain. She had congestive heart failure in 1987, and is at high risk for cardiovascular disease. The Nitrostat causes plaintiff to feel light headed and have headaches. Plaintiff takes Lescol to control her high cholesterol. She uses Albuterol inhaler to help control respiratory distress. The Albuterol inhaler causes nausea, and she takes Previcid for stomach upset. Plaintiff is also taking Ogen for estrogen replacement. She is on Zoloft for depression, which causes drowsiness. Plaintiff had bladder surgery and has incontinence. She wears adult diapers when she leaves her home and carries extras with her.

Janice Hastert, vocational expert, testified in response to hypothetical questions. She testified that if plaintiff had the abilities described by the ALJ, plaintiff could perform jobs such as small parts assembler, photocopy machine operator, and laundry folder. Ms. Hastert testified the plaintiff could not be substantially gainfully employed at the jobs listed above if she could not work a forty-hour work week. She also testified that if plaintiff's deficiencies in concentration, persistence and pace were "often" or if plaintiff had "marked" social functioning, plaintiff would not be employable in the jobs previously mentioned. Ms. Hastert also testified that plaintiff would not be employable if she had to miss work more than one day a month.

III. STANDARD OF REVIEW

Title 42, § 405(g) of the United States Code provides for judicial review of a final decision of the Commissioner of the Social Security Administration (SSA). The reviewing court must determine whether the record as a whole contains substantial evidence to support the Commissioner's decision. 42 U.S.C. § 405(g); Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir.1994). Substantial evidence is adequate, relevant evidence that a reasonable mind might accept to support a conclusion. Hargis v. Sullivan, 945 F.2d 1482, 1486 (10th Cir.1991). "Evidence is insubstantial if it is overwhelmingly contradicted by other evidence." O'Dell v. Shalala, 44 F.3d 855, 858 (10th Cir.1994) (citation omitted). "A finding of no substantial evidence will be found only where there is a conspicuous absence of credible choices or no contrary medical evidence." Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir.1992) (citations omitted). The reviewing court must also determine whether the Commissioner applied the correct legal standards. Washin...