Nylander v. Astrue
| Decision Date | 12 April 2012 |
| Docket Number | CASE NO. 11-cv-5502-JRC |
| Court | U.S. District Court — Western District of Washington |
| Parties | THERESA L. NYLANDER, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant. |
This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S. Magistrate Judge and Consent Form, ECF No. 3; Consent to Proceed Before a United States Magistrate Judge, ECF No. 6). This matter has been fully briefed (see ECF Nos. 16, 19, 20).
After considering and reviewing the record, the undersigned finds that the ALJ failed to evaluate properly the opinions of two treating physicians, while providing moreweight to the opinion of a non-examining doctor who may not have reviewed the entire medical record. The ALJ also erred in his review of plaintiff's credibility and in his review of the lay evidence. Therefore, this matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Commissioner for further administrative proceedings.
Plaintiff, THERESA L. NYLANDER, was forty-one years old on her date of alleged onset of disability of June 1, 2001 (Tr. 154). Plaintiff has recent work experience from June, 1996 until 2005 (see Tr. 162-63, 172-73). She testified regarding her work for Washington State Parks and Recreation as a park aide (Tr. 41-42). In this position, she took care of registration, cleaned the bathrooms, mowed the lawns, dug posts and put in fences (id.). She alleged that she no longer was able to do this job due to her physical and mental impairments. According to the ALJ, plaintiff suffered from the severe impairments of gastroparesis; hypertension; hyperlipidemia; and, major depressive disorder, partially in remission (Tr. 14).
Plaintiff underwent a cholecystectomy "for what was described as a severely inflamed gallbladder with adhesions" on July 5, 2001, but continued to have nausea, as reported on July 18, 2001 and September 22, 2001 (see, e.g., Tr. 248, 254, 255). On March 5, 2002, Dr. Carole Buckner, D.O. ("Dr. Buckner") indicated that because of plaintiff's "persistence of symptoms, she had a gastric emptying study on 11/21/01 that showed an abnormally low gastric emptying of 25% at 90 minutes" (Tr. 242). Dr. Buckner noted that plaintiff still had "significant daily nausea" and Dr. Bucknerconducted a physical examination (id.). Dr. Buckner opined that plaintiff suffered from idiopathic gastroparesis (id.). Because plaintiff's prescribed medications were not providing complete relief, Dr. Buckner indicated her plan to "do some research to see if anyone in this area is doing studies with gastric pacemaker or other experimental therapies for gastroparesis" (id.).
Dr. Buckner referred plaintiff to a specialist, gastroenterologist Dr. David Patterson, M.D. ("Dr. Patterson"), who saw plaintiff on June 17, 2002 due to plaintiff's continuing complaints of nausea (Tr. 377). Dr. Patterson conducted a physical examination and assessed that plaintiff had chronic nausea (Tr. 378). He opined that her previous gastric emptying study was invalid due to a deficient duration of testing and recommended a repeat of this study, as well as a repeat abdominal ultrasound, and other tests (Tr. 378-79). Dr. Patterson indicated his opinion that at that point in time, gastroparesis was "unproven" (Tr. 379).
On July 3, 2002, plaintiff's repeat gastric emptying study demonstrated 52% of gastric contents remained after 120 minutes, while normal "range is 50% emptied by 90 minutes +/- 30 minutes" (Tr. 382). Dr. Patterson again examined plaintiff on May 6, 2004 (Tr. 374-75). According to plaintiff's testimony, the gap in treatment visits was due to the fact that Dr. Patterson had advised plaintiff that no new treatments were available (Tr. 38-39). Dr. Patterson's treatment notes indicate that plaintiff "had been tried on all the available anti-emetic drugs that were available to the physician" (Tr. 374). He also indicated that "in the last two months, nausea has been more severe despite taking Domperidone" (id.). Dr. Patterson indicated his assessment that at this time plaintiff wassuffering from a flare up of gastroparesis (id.). He indicated his plan that plaintiff continue with the Domperidone and he added a prescription for Zelnorm (id.).
On February 10, 2004, Dr. Michael Schuffler, M.D ("Dr. Schuffler") examined plaintiff and indicated his assessment that she suffered from "idiopathic gastroparesis primarily expressing itself as moderately severe nausea" (Tr. 261). Dr. Schuffler indicated that plaintiff had "tried most drugs" and suggested that she try acupressure bands; getting Zofram from New Zealand; and acupuncture (id.). He indicated his emphasis that these treatment plans were "empiric and that it w[ould] be trial and error as we go" (id.).
Dr. Patterson examined plaintiff again on August 6, 2007 (Tr. 372-73). He indicated that plaintiff was suffering from nausea daily (Tr. 372). Dr. Patterson indicated at this time that plaintiff was on the maximum dose of Domperidone and that she had "failed metoclopramide and erythromycin in the past, which are the only two other prokinetic drugs we have available" (id.). He noted that Zelnorm no longer was on the market (id.).
Dr. Diana E. Velikova ("Dr. Velikova") began treating plaintiff on September 10, 2008 (see Tr. 410-12). On that occasion, she indicated plaintiff's report of episodic constipation, memory decline and depression (Tr. 411). Dr. Velikova also noted that plaintiff was suffering from chronic nausea due to her gastroparesis (id.). Dr. Velikova indicated that plaintiff was suffering from "almost constant nausea" and that attempts at treatment with multiple different medications had not been effective at controlling her nausea (id.). Dr. Velikova conducted a physical examination and indicated her impressionthat plaintiff suffered from controlled hypertension, dyslipidemia, memory decline and previous history of impaired fasting glucose, among other things (Tr. 411-12). She indicated her plan to have plaintiff receive a comprehensive metabolic panel and a lipid panel, among other specific laboratory tests (Tr. 412).
Dr. Velikova provided a medical source statement regarding plaintiff's ability to work (see Tr. 440-44). Dr. Velikova opined that plaintiff "would not be able to lift/carry any w[eigh]t at all" when her gastroparesis symptoms are active (Tr. 441). Dr. Velikova also indicated her opinion that plaintiff may not be able to walk or stand "at all" if she "has active nausea/abdominal heaviness/pain" (id.). Dr. Velikova added a hand-written note into the medical source statement explaining her opinion that plaintiff never could climb, balance, kneel, crouch, crawl or stoop, in which she indicated that when plaintiff suffered from active severe nausea, she would "not be able to perform any of the above-listed activities and supine position may be the only way she can control symptoms" (Tr. 442).
Dr. Velikova also opined that plaintiff suffered from manipulative limitations, and explained this opinion by indicating that when plaintiff's "symptoms of gastroparesis are severe, supine position is the only position [plaintiff] can tolerate and during these episodes she is unable to perform any activity" (Tr. 443). Dr. Velikova also indicated that plaintiff suffered from environmental limitations (Tr. 444). Dr. Velikova indicated that this assessment was "made on the basis of patient's history and symptoms" (id.).
Dr. Patterson examined plaintiff again on December 22, 2009 (Tr. 448-49). He indicated his agreement with plaintiff that her disorder was "sufficiently disabling thatshe should qualify for disability" but indicated that he would ask her primary care provider, Dr. Velikova, to complete "the physical assessment that is required on these forms" (Tr. 448; see also Tr. 449 ()). He again indicated that although plaintiff has tried many treatments without success and has asked Dr. Patterson if there were any new products on the market, Dr. Patterson stated "there really are not" (Tr. 448).
Dr. Patterson indicated in his assessment and plan that he supported her application for disability, but that he deferred to plaintiff's primary care provider to complete the medical source statement regarding plaintiff's physical abilities and limitations (see Tr. 448-49).
Plaintiff filed an application for Title II disability insurance benefits in August, 2007 (Tr. 154-58). Her application was denied initially and following reconsideration (Tr. 71-73, 78-82). Plaintiff's requested hearing was held on January 21, 2010, before Administrative Law Judge Richard A. Gilbert ("the ALJ") (Tr. 30-68, 83-84).
On February 5, 2010, the ALJ issued a written decision in which he found that plaintiff was not disabled pursuant to the Social Security Act (Tr. 9-25). On May 27, 2011, the Appeals Council denied plaintiff's request for review, making the written decision by the ALJ the final agency decision subject to judicial review (Tr. 1-5). See 20 C.F.R. § 404.981. On June 30, 2011, plaintiff filed a complaint in this Court seeking judicial review of the ALJ's written decision (see ECF No. 1).
On September 28, 2011, defendant filed the sealed administrative transcript regarding this matter ("Tr.") (see ECF No. 11). In her Opening Brief, plaintiff challenges the ALJ's review of: (1) the opinions of treating physicians; (2) plaintiff's testimony; (3) the lay testimony; and (4) the medical expert's testimony (ECF No. 16, p. 1). Plaintiff also challenges the ALJ's determination regarding plaintiff's residual functional capacity and his Step-Five finding regarding plaintiff's ability to perform other work (id.).
Plaintiff bears the burden of proving disability within the meaning of the Social Security Act (hereinafter "the Act")....
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