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McCumber v. Colvin

United States District Court, D. Massachusetts

September 25, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.


TIMOTHY S. HILLMAN, District Judge.

This is an action for judicial review of a final decision by the Commissioner of the Social Security Administration ("SSA") (the "Commissioner") denying John Joseph McCumber's ("Plaintiff") application for Social Security Disability Insurance Benefits. Plaintiff filed a motion seeking an order reversing the decision of the Commissioner (Docket No. 16), and the Commissioner filed a cross-motion seeking an order affirming the decision of the Commissioner (Docket No. 20). For the reasons set forth below, Plaintiff's Motion to Reverse and Remand the Decision of the Social Security Administration is granted and Defendant's Motion to Affirm the Commissioner's Decision (Docket No. 20) is denied.

Procedural History

Plaintiff filed an application for disability insurance benefits on February 22, 2010, claiming he has been unable to work since August 31, 2005 because of respiratory and gastrointestinal illnesses. (R. 177, 181). Plaintiff's application was denied on July 7, 2010, and his request for reconsideration was denied on October 28, 2010. (R. 67). On November 30, 2010, Plaintiff timely requested a hearing before an administrative law judge (ALJ). (R. 74). Plaintiff appeared by video hearing before ALJ Addison C.S. Massengill on March 5, 2012. (R. 16). On May 15, 2012, the ALJ issued a decision finding that Plaintiff was not disabled under the Social Security Act. (R. 23). The Appeals Council denied Plaintiff's request for review on May 16, 2013, making the ALJ's decision the final decision of the Commissioner. (R. 1).


Personal and Employment History

Plaintiff was 47 years old on his alleged onset date of disability, and 54 years old on the date of his hearing before the ALJ. (R. 156). He graduated from high school in 1976. (R. 182). Plaintiff worked as a forklift operator and warehouse manager at Casey Warehouse in Leominster, Massachusetts from 1979 until 2005. (R. 203). In 2005, Plaintiff discovered that certain materials he handled in the warehouse, described as silicones and aerosols, (R. 31), were hazardous. (R. 50-51). He had worked with the hazardous material for four years without proper equipment. Id. Upon making this discovery, Plaintiff went to his employer and insisted that he would no longer handle hazardous materials without proper training and equipment. Id. As a result, Plaintiff was fired from his job on August 30, 2005. (R. 30-31, 183). He initially attempted, but ultimately was unable, to find work in the same field. (R. 31). Plaintiff stopped looking for work in 2006 as a result of his worsening medical condition, and supported himself with a $100, 000 settlement he received from his former employer. (R. 33).

Medical History

Plaintiff has been treated primarily for two impairments: Barrett's Esophagus, or gastroesophageal reflux disease (GERD), and chronic obstructive pulmonary disease (COPD). In addition to medical reports from his gastrointestinal and pulmonary specialists, the record contains reports from Plaintiff's primary care physician and his mental health counselors.

(1) Records from Elliot Feinberg, M.D.

Plaintiff was treated by gastroenterologist Elliot Feinberg between 1994 and 2008. In 1994, Plaintiff underwent an upper endoscopy and was diagnosed by Dr. Feinberg with "rather severe" esophagitis and gastritis. (R. 259). He was prescribed Prilosec for two months. Id. Plaintiff next returned to Dr. Feinberg in 1998 after complaining of severe reflux symptoms and chest pain. (R. 261) However, a subsequent endoscopy was normal except for "some gastritis." (R. 257). Plaintiff was prescribed Prevacid. Id.

Plaintiff next underwent an endoscopy in August 2005. (R. 276) Results were normal, although Barrett's Esophagus was detected and a biopsy of the Barrett's Epithelium was performed. Id. Plaintiff was instructed to continue taking Prevacid once or twice a day. (R. 254). In August 2006 Plaintiff underwent an endoscopy/colonoscopy. The endoscopy revealed a "short segment Barrett's epithelium, " (R. 250) but otherwise yielded "stable findings." (R. 246). The colonoscopy revealed the presence of multiple large polyps in the colon, which were removed. (R. 250). This finding was concerning enough to Dr. Feinberg that he scheduled Plaintiff for a repeat procedure the following year. Id. Plaintiff's repeat colonoscopy was performed in September 2007. (R. 247). The procedure revealed the presence of two small polyps which were removed, and a follow-up colonoscopy was recommended to be scheduled within five years. Id. Plaintiff underwent another endoscopy in September 2008. (R. 244). Dr. Feinberg's records indicate that Plaintiff's Barrett's and GERD symptoms were mostly controlled with Prevacid (R. 246).

(2) Records from Odalys Croteau, M.D. and Plutarco Castellanos, M.D.

Plaintiff was treated by pulmonologist Odalys Croteau for his respiratory problems between 2008 and 2010. Records from Plaintiff's January 2008 visit to Dr. Croteau indicate that he had "mild chronic obstructive pulmonary disease" that caused exertional dyspnea (shortness of breath upon exertion). (R. 321). However, the dyspnea was managed with prescription Combivent and an albuterol inhaler. Id. Dr. Croteau also observed that Plaintiff's reflux disease was "stable on Prevacid." Plaintiff next saw Dr. Croteau in October 2008. Plaintiff denied having any respiratory symptoms other than his mild exertional dyspnea. (R. 317). Dr. Croteau noted that Plaintiff had just had an endoscopy with Dr. Feinberg and "reportedly everything was just fine." Id. Plaintiff continued to manage his COPD and GERD symptoms with Combivent and Prevacid. Id. Later that month, Plaintiff underwent a pulmonary function test. (R. 319-20). Dr. Croteau observed there was no evidence of airway obstruction, no restrictive ventilatory defect, no significant change in spirometry, and that Plaintiff's diffusion capacity was within normal limits despite a significant decline of 22% since August 2006. (R. 319). Plaintiff last saw Dr. Croteau in October 2009. Dr. Croteau observed that Plaintiff was "in his usual state of health" and "with the exception of rare exertional dyspnea with over exertion, the patient denies chronic respiratory symptoms." (R. 315).

Plaintiff began seeing a new pulmonologist, Dr. Plutarco Castellanos, in August 2010. Notes from the initial evaluation described Plaintiff's COPD and shortness of breath as intermittent with moderate severity. Id. The symptoms were aggravated by climbing stairs and humidity. Id. Dr. Castellanos noted that Plaintiff's lung respiratory rate was normal, percussion was normal bilaterally, and breath sounds were clear bilaterally. (R. 342). He continued Plaintiff on his Combivent prescription, and started a prescription for Symbicort. Id. Plaintiff saw Dr. Castellanos for a follow-up visit one month later. Plaintiff reported that his chest congestion, shortness of breath, and nasal congestion were all improving as a result of cooler weather. (R. 344). (R. 344-45). Dr. Castellanos observed that Plaintiff's "COPD is mild so he will continue the intermittent use of Combivent as needed." (R. 345). The prescription for Symbicort was discontinued because Plaintiff "did not tolerate" the medication. Id. Also contained in the September 2010 report is Dr. Castellanos' review of Plaintiff's pulmonary function test results, administered on September 15, 2010. Dr. Castellanos observed that the spirometry, lung volumes, and diffusion capacity were all within normal limits. Id. The report noted, however, that "ATS criteria was not met on spirometry and methacholine test could not be done." Dr. Castellano next examined Plaintiff in January 2011. (R. 375). Plaintiff stated that since the last visit, his chest congestion was improving, but shortness of breath, nasal congestion, and wheezing were all worsening. Id. Exacerbating factors appeared to be the change of season and exposure to allergens. Id. Dr. Castellanos continued Plaintiff's prescription for Combivent. (R. 376).

Dr. Castellanos submitted a letter for the record dated November 28, 2011, expressing the opinion that Plaintiff's symptoms are consistent with "moderate chronic obstructive lung disease and chronic rhinitis, " and given Plaintiff's inability to tolerate prescribed medications, "his ...

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