NEEDREPLACE
| Decision Date | 26 March 2014 |
| Docket Number | No. 3:13–cv–132 RP–CFB.,3:13–cv–132 RP–CFB. |
| Citation | 7 F.Supp.3d 928 |
| Parties | Nicolas Allen ENDERLE, Plaintiff, v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant. |
| Court | New York District Court |
OPINION TEXT STARTS HERE
Motion granted. Hugh M. Field, Kate Baratta Mitchell, Beecher Field Walker Morris Hoffman & Johnson, Waterloo, IA, for Plaintiff.
William C. Purdy, U.S. Attorney's Office, Des Moines, IA, Stephanie Johnson Wright, United States Attorneys Office, Cedar Rapids, IA, for Defendant.
Plaintiff, Nicolas Allen Enderle, filed a Complaint in the United States District Court for the Northern District of Iowa on September 11, 2013, seeking review of the Commissioner's decision to deny his claim for Social Security benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. The case was transferred to the Southern District of Iowa on December 11, 2013. This Court may review a final decision by the Commissioner. 42 U.S.C. § 405(g).
On March 10, 2014, the Commissioner moved to remand this case to give the ALJ the opportunity to fully consider Plaintiff's impairments, to reevaluate medical records and reconsider the medical source evidence, to determine whether Plaintiff meets or equals a listing-level impairment, and to give further consideration to Plaintiff's residual functional capacity. Plaintiff has not resisted the motion to remand. For the reasons set forth below, the Motion is granted.
Plaintiff filed an application for benefits November 15, 2010. Tr. at 106–07. Plaintiff, whose date of birth is March 30, 1978, (Tr. at 106) was 33 years old at the time of the hearing on March 26, 2012, before Administrative Law Judge John E. Sandbothe (ALJ). Tr. at 15–32. The ALJ issued a Notice Of Decision—Unfavorable on May 9, 2012. Tr. at 44–55. The Appeals Council declined to review the ALJ's decision on July 23, 2013. Tr. at 1–6. Thereafter, Plaintiff commenced this action.
In his application for Title II benefits, Plaintiff stated he became unable to work because of his disabling condition on December 4, 2009. Tr. at 160. The ALJ found that Plaintiff is insured for Title II benefits until December 31, 2014. At the first step of the sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial gainful activity after December 4, 2009. At the second step, the ALJ found Plaintiff's severe impairments to be hearing loss, obesity, and irritable bowel syndrome. Tr. at 49. The ALJ found that none of these impairments, alone or in combination, were severe enough to qualify for benefits at the third step of the sequential evaluation. At the fourth step, the ALJ found that Plaintiff retains the residual functional capacity for light work except he is unable to be around hazards and noise above “a normal office,” and that he should have constant access to a bathroom. Tr. at 50. The ALJ found that Plaintiff is able to perform his past relevant work as a bagger and customer service representative. Tr. at 54. The ALJ found that Plaintiff is not disabled nor entitled to the benefits for which he applied. Tr. at 55.
On December 12, 2008, Plaintiff saw Michael J. Malin, M.D. Plaintiff's chief complaint was hearing loss and tinnitus. Plaintiff said the tinnitus was getting worse, especially at night when he took out his hearing aids. It was noted that Plaintiff was also being treated for irritable bowel syndrome, general anxiety disorder, sensorineural hearing loss, asthma and depressive disorder. Tr. at 249. Plaintiff was given information about tolerating and living with tinnitus and a prescription of clonazapam. He was also referred to an ENT physician for treatment of the hearing loss. Plaintiff's weight was noted to be 298 pounds. Tr. at 250. Dr. Malin also renewed Plaintiff's prescription for Lexapro. Tr. at 251.
On February 2, 2009, Plaintiff asked Dr. Malin for a different medication for depression because of the cost of Lexapro. The doctor discontinued Lexapro and prescribed citalopram. The doctor also increased the dosage of clonazepam. Tr. at 246–47. Plaintiff's weight was 298 pounds. Tr. at 247.
On February 12, 2009, Plaintiff complained of head pressure and congestion, a sore throat and hoarseness. He also said his left ear and sinus was plugged. The doctor diagnosed Otitis Media 1. Plaintiff's weight was 296 pounds. Tr. at 244–45. Plaintiff returned to the doctor on February 16, 2009, and reported that the illness had settled in his chest. He said he was hoarse, coarse, wheezy, and short of breath. The doctor diagnosed acute bronchitis and acute sinusitis. Tr. at 242–43.
On March 5, 2009, Plaintiff saw Dr. Malin after hitting a deer earlier that day. Plaintiff complained of pain in his flanks and low back. Although he complained of aches, he was able to move around and didn't complain of radicular symptoms. The doctor diagnosed lumbar region sprain. Plaintiff's weight was 295 pounds. Tr. at 240–41.
On June 2, 2009, Plaintiff saw Dr. Malin for a benign transient tremor in his right hand. Watchful waiting was advised. Tr. at 237–38. Plaintiff's weight was 311 pounds. Tr. at 238.
On June 17, 2009, Plaintiff saw Bradley D. Cutting, M.D. for nasal congestion. Tr. at 234–36. Plaintiff's weight was 305 pounds. Tr. at 235.
On July 29, 2009, Plaintiff saw Charles R. Radmer, D.O. Plaintiff reported a two week history of abdominal cramping associated with irritable bowel syndrome. Plaintiff said he felt bloated and miserable. Tr. at 231. On physical exam, Plaintiff's weight was 308 pounds. Tr. at 232. The diagnosis was abdominal pain, generalized. The doctor ordered a prescription of Amitiza. Tr. at 333.
On September 19, 2009, Plaintiff saw Dr. Radmer with a chief complaint of fatigue which had started 4 days before the visit. Plaintiff also complained of some nausea and vomiting. Tr. at 225. Current weight was listed as 310 pounds. Tr. at 226. The diagnosis was viral syndrome and a prescription for phenergan was written. Tr. at 227.
Plaintiff saw Dr. Malin on September 21, 2009, for the symptoms complained of in the previous visit. Plaintiff reported that he had missed 4 days of work because of the nausea and fatigue. Tr. at 222. Diagnoses were viral infection and acute upper respiratory infection.
On December 7, 2010, audiologist M'elizabeth R. Maatta, AuD, wrote that Plaintiff was first seen in March 2005 for constant tinnitus and a moderate sensorineural hearing loss with impaired auditory discrimination. Plaintiff was fitted for hearing aids and was provided an amplified telephone so he could work as a customer assistant. By October 13, 2009, Plaintiff's hearing loss had progressed to the moderately severe range, and he needed hearing aids in most situations. Nevertheless, Ms. Maatta wrote: Tr. at 255.
On March 9, 2011, Plaintiff saw Dov Rotenberg, M.D. because of his hearing loss. Plaintiff reported that he hearing aids were being repaired. In addition to bilateral tinnitus, Plaintiff described a increasingly severe hearing loss over the previous decade. After an examination and review of an audiogram, Dr. Rotenberg diagnosed bilateral sensorineural hearing loss with associated tinnitus, eustachian tube dysfunction and chronic rhinitis. Tr. at 271. The doctor recommended updated hearing aids and hearing conservation measures. Plaintiff was given a prescription for Flonase. The doctor also recommended that Plaintiff “should lose considerable weight, he is at significant risk for obstructive sleep apnea.” Tr. at 272.
Plaintiff was seen at the University of Iowa Hospitals and Clinics (the University of Iowa) on May 2, 2011. Plaintiff reported a history of bilateral hearing loss for which he was wearing hearing aids. Plaintiff complained of several episodes of left chest pain, mild transient, primarily after eating salty foods. He denied rapid/irregular heartbeat, shortness of breath, or diaphoresis. Tr. at 276. On physical examination, Plaintiff's weight was 326 pounds with a body mass index (BMI) of 45.27. Diagnoses were gastroesophageal reflux disease (GERD), chest pain, elevated blood pressure, obesity, and rule out allergic rhinitis. The plan was to refer Plaintiff to the ENT clinic for a hearing evaluation. Plaintiff was also counseled about diet and exercise for weight loss. Tr. at 278.
When Plaintiff was seen at the University of Iowa on June 6, 2011, he reported that he had drastically reduced his salt intake and that Gaviscon had worked well for the chest discomfort. Plaintiff reported a seven to eight year history of irritable bowel syndrome which consisted of frequent episodes of alternating constipation and diarrhea. He said that symptoms were worse when he was under stress. Tr. at 279. Plaintiff's weight was 323 pounds. Tr. at 280.
Plaintiff was seen at the University of Iowa on July 13, 2011. Tr. at 282. The chief complaint was abdominal pain and diarrhea. Tr. at 282. Plaintiff's weight was 323 pounds. Tr. at 283. An ultrasound of the abdomen and gallbladder was ordered. Tr. at 284
A University of Iowa treatment note dated August 11, 2011, stated that the ultrasound had been ordered, but Plaintiff had not been notified of a date for the study. Plaintiff reported being seen in the ENT clinic and being told he needs hearing aids (see Tr. at 314–15). Tr. at 285. Plaintiff's weight was 322 pounds. Tr. at 286. It was noted that Plaintiff's hearing was markedly diminished. It was also noted that his blood pressure was within normal limits. Tr. at 287.
Plaintiff underwent an ultrasound on September 2, 2011. The findings were: hepatosplenomegaly; hyperechoic liver parenchyma—a nonspecific finding which can be seen with fatty infiltration or hepatocellular disease; the pancreas was suboptimally visualized due to overlying bowel gas; otherwise unremarkable...
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