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Tanner v. Barnhart

United States District Court, N.D. California, San Francisco Division
Feb 11, 2003
CIVIL NO. C-99-00916 SC (N.D. Cal. Feb. 11, 2003)

Opinion

CIVIL NO. C-99-00916 SC

February 11, 2003

Attorneys for Defendant, KEVIN V. RYAN, JOCELYN BURTON, ALEX G. TSE, San Francisco, CA


STIPULATION AND PROPOSED ORDER FOR ENTRY OF FINAL JUDGMENT


The above captioned action was remanded by this Court on July 5, 2002, pursuant to sentence six of section 205(g) of the Social Security Act, Title 42 U.S.C. § 405(g). On September 26, 2002, an Administrative Law Judge issued a decision fully favorable to plaintiff. IT IS HEREBY STIPULATED by and between the undersigned, subject to the approval of the Court, that the favorable decision by the Social Security Administration has become the final decision of the Commissioner (Exhibit 1.)

Final judgment may therefore be entered for the plaintiff. 42 U.S.C. § 405(g), Sentence 6, A proposod judgment is submitted for the Court's convenience.

Exhibit 1

SOCIAL SECURITY ADMINISTRATION Refer To: 562-74-3649

Office of Hearings and Appeals Social Security Administration 301 Howard Street 3rd Floor San Francisco, California 94105

Date: SEP 26, 2002

Sherry Tanner PO BOX 605 Trinidad, CA 95570

NOTICE OF DECISION FAVORABLE

Enclosed is the Administrative Law Judge's decision on your claim. This notice gives you information about what you can do if you disagree with the decision. Please read this notice and the decision carefully.

This Decision is Favorable To You

Another office of the Social Security Administration will process the decision and will send you a notice about your benefits. Your local Social Security office or another Social Security office may ask you for more information before you receive the notice about your benefits. If this happens, please answer promptly.

You should hear something about this decision within 60 days. If you do not, contact your local Social Security office.

If You Disagree With The Decision

If you disagree with the Administrative Law Judge's decision, you may appeal to the Appeals Council. You must do this by filing written exceptions. Exceptions are your statements explaining why you disagree with the decision of the Administrative Law Judge.

Mail the written statement of your exceptions to:

Appeals Council, Office of Hearings and Appeals 5107 Leesburg Pike Falls Church, VA 22041-3255

You must file your written exceptions within 30 days from the date you receive this notice. The Appeals Council assumes that you receive this notice within five days after the date shown on it unless you show that you did not receive it within the five-day period.

Sherry Tanner (562-74-3649)

If you need more time to file your writen exceptions, you must file a written request for additional time with the Appeals Council within 30 days of the date you receive this notice. If you request more than a 30-day extension of time, you must explain why you need the extra time.

Please include the Social Security number(s) shown on the decision on any paper you send to the Appeals Council.

The AppealS Council will consider your exception and the parts of the decision that you disagree with. The Appeals Council may also consider those parts that you do not disagree with.

If the Appeals Council concludes that further action is necessary, it will either return your case to an Administrative Law Judge for further action or issue a decision. If the Appeals Council issues a decision, its decision may be either more or less favorable to you than the decision of the Administrative Law Judge.

If the Appeals Council concludes that there is no reason to change the Administrative Law Judge's decision, it will notify you in writing why your exceptions do not warrant a change.

If you submit written exceptions and the Appeals Council does not change the decision of the Administrative Law Judge, that decision becomes the final decision of the Commissioner after remand.

Any future claim you may file will not change a final decision on this claim if the facts and issues are the same.

If You Do Not File Written Exceptions

Even if you do not file exceptions, within 60 days from the date shown below the Appeals Council may review your case on its own motion. The Appeals Council will notify you if it decides to review your case, and will advise you what action it proposes to take.

If the Appeals Council does not review your case on its own motion and you do not file exceptions, we will forward a copy of the decision and transcript of the record in your case to the United States Attorney, for filing with the court when required. You have the right to pursue your civil action with the court.

New Application

You have the right to file a new application at any time, but filing a new application is not the same as filing exceptions to this decision. You might lose benefits if you file a new application instead of filing written exeptions to this decision. My decision could also be used to deny any new application for insurance benefits, if the facts and issues are the same. So, if you disagree with this decision, you should file exceptions within 30 days.

If You Have Any Questions

If you have any questions, you may call, write or visit any Social Security office. If you visit an office, please bring this notice and decision with you. The telephone number of the local office that serves your area is (707) 445-9610. Its address is

3144 Broadway Eureka, CA 95501

Fenton H. Hughes Administrative Law Judge

Enclosure

cc: Ira S. Blatt 494 H Street Arcata, CA 95521

SOCIAL SECURITY ADMINISTRATION

Office of Hearings and Appeals

DECISION

IN THE CASE OF CLAIM FOR Sherry Tanner Disability Insurance Benefits 562-74-3649 Period of Disability and (Claimant) (Wage Earner) (Social Security Number)

PROCEDURAL HISTORY

On August 27, 1996, the claimant filed an application for Disability insurance Benefits. Following initial and reconsideration denials, claimant filed a timely hearing request and the matter came before an Administrative Law Judge.

Following a hearing at which claimant appeared and testified, the Administrative Law Judge issued a decision finding claimant to be not disabled (Exhibit 12B). Claimant appealed the finding of non-disability to the Appeals Council, which found no basis for granting review in a determination dated January 8, 2000 (Exhibit 14B). Claimant appealed to the United States District Court for the Northern District of California which remanded the matter back to the Social Security Administration on July 5, 2000 for further proceedings on the issue of whether claimant is disabled (Exhibit 17B). The Appeals Council remanded the case on March 8, 1999 for further proceedings (Exhibit 19B).

A hearing was subsequently held on July 16, 2002 in Eureka, CA, at which claimant appeared and testified. A supplemental hearing was held on September 11, 2002 in San Francisco, CA, at which claimant and her representative participated by phone. Appearing and offering testimony at the supplemental hearing were the following: David J. Anderson, MD, a qualified psychiatric medical expert; and Morris Wasserman, MD, a qualified internal medicine medical expert.

The claimant alleges disability beginning December 11, 1995 due to hepatitis C, acid reflux, chronic depression, irritable bowel syndrome, high blood pressure, nausea, vomiting, and chronic fatigue. Ira S. Blatt represents the claimant in this matter.

The general issue is whether the claimant is entitled to a period of disability and Disability Insurance Benefits under sections 216(i) and 223 of the Social Security Act. The specific issue is whether she is under a disability, which is defined as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months.

With respect to the claim for Disability Insurance Benefits, there is an additional issue pertaining to insured status. A review of the claimant's earnings record reveals that she has earned sufficient quarters of coverage to remain insured only through December 31, 2000. Thus, in order to become eligible for Disability Insurance Benefits, the claimant must demonstrate that she was under a disability on or before that date.

EVALUATION OF THE EVIDENCE

The claimant is a 55-year-old individual with a high school education plus one year of college and past relevant work as a telemarketer and wine buyer and salesperson. She has not engaged in substantial gainful activity at any time since the alleged onset date.

The claimant has the following medically determinable severe impairments: hepatitis C, hydradenitis, and major depression, recurrent.

On March 14, 1996, the claimant underwent an initial mental examination where it was noted that she had fleeting suicide thoughts and then overdosed on prescription medication (Exhibit 6F9). Dr. Kaye, her treating psychiatrist, noted in an assessment dated October 27, 1997, that the claimant had a Global Assessment of Functioning score of 40, which indicates that the claimant experienced some impairment in reality testing or communication or a major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (Exhibit 16F11). Dr. Kaye noted that the claimant had low stress tolerance, was irritable and tired and had poor concentration.

The claimant was examined on April 11, 1996 by Dr. Andrews, a gastroenterologist, and found to have a mildly enlarged liver (Exhibit 1F7). At that time she complained of depression with suicidal ideation, irregular bowel habits alternating between diarrhea and constipation, and musculoskeletal pains. April 1996 lab results indicate a high level of hepatitis C virus in the claimant's bloodstream, but a negative ANA results (Exhibit 1F13). The claimant underwent a liver biopsy on May 15, 1996. The biopsy showed macrovesicular fatty change with occasional sinusoidal kupffer cell hyperplasia and lymphocytic anfiltrate without cirrhosis (Exhibit 1F11). However, July 1996 lab results showed that the claimant did not have elevated levels of liver enzymes (Exhibit 1F10).

A treatment note from Dr. Gans, a treating physician, dated August 8, 2000 indicates that the claimant has ongoing hydradenitis, which has not responded to two weeks of treatment with the antibiotic Keflex (Exhibit 29F28).

At the hearing, the claimant testified that she has hydradenitis in her groin for which surgical treatment has been recommended but the claimant has not decided whether or not to have surgery. She testified that she had undergone treatment for hepatitis C in 1997, and was treated for about 6-8 weeks when he stopped treatment because she could not tolerate the side effects. She testified that she has pain in her feet and joints, occasional muscle pain, and shortness of breath when climbing 7-8 stairs.

At the hearing, the undersigned called upon Dr. Wasserman, the medical expert, to testify regarding the claimant's impairments. Dr. Wasserman testified that research has indicated that patients can develop a disabling autoimmune disease similar to lupus from hepatitis C, even if the hepatitis C is asyrnptorratic. Dr. Wasserman testified that in his opinion the claimant had just that condition: an undiffereatiated connective tissue disorder caused by hepatitis C, with the medical records indicating the findings that he would expect to be associated with this impairment.

Dr. Wasserman noted that the claimant's medical records indicate that although her hepatitis C is active as demonstrated by the amount of virus detected in her bloodstream, her hepatitis C is considered mild since her liver enzyme levels are not elevated. Dr. Wasserman noted that with this particular connective tissue disorder he would not expect a positive ANA result, and that the claimant had had a negative ANA. Dr. Wasserman concluded that since the alleged onset date of December 11, 1995, the claimant's impairment equals Listing 14.06, evaluated under the criteria for Listing 14.02A, with associated joint pain, psychological and cognitive difficulties, abdominal diarrhea and constipation, numbness and weakness in the extremities, and depression and difficulty in concentrating.

Dr. Wasserman further testified that the claimant's hydradenitis impairment does not currently meet the criteria for Listing 8.06. He noted that the claimant apparently had failed prescribed treatment for her hydradenitis (Exhibit 29F28), although she had not also failed surgical treatment yet, as it had been prescribed but the claimant had not decided whether or not to pursue it. Dr. Wasserman indicated in his testimony that the claimant's hydradenitis is clearly a significantly harmful health condition.

Dr. Anderson, the psychiatric medical expert, testified that the claimant meets Listing 12.04 Dr. Anderson noted several assessments of the claimant that showed depressive symptoms and mood instability and lability.

After giving careful consideration to all the documentary evidence, the Administrative Law Judge has concluded that the claimant has an impairment that meets the criteria of section 12.04 Dr. and an impairment that equals the criteria of section 14.06 of the impairments listed an Appendix 1, Subpart P of the regulations ( 20 C.F.R. Part 404). The undersigned credits the testimony of the medical experts, Dr. Anderson and Dr. Wasserman, and finds their testimony to be supported by substantial evidence in the record.

The evidence supports a finding that the claimant's disability began on December 11, 1995, before the date her insured status expired.

In accordance with a finding that the claimant has been under a disability beginning December 11, 1995, she is entitled to Disability Insurance Benefits on the basis of her application of August 27, 1996.

FINDINGS

After careful consideration of the entire record, the Administrative Law Judge makes the following findings:

1. The claimant has not engaged in substantial gainful activity since December 11, 1995.

2. The medical evidence establishes that the claimant has the following severe impairments: hepatitis C with a resulting autoimmune disorder, hydradenitis, and major depression, recurrent.

3. The severity of the claimant's impairments meets the requirements of section 12.04, 14.06, Appendix 1, Subpart P, Regulations No. 4 and is expected to preclude her from working for at least 12 continuous months.

4. The claimant has been under a disability, as defined in the Social Security Act, since December 11, 1995 (20 CER § 404.1520(d)).

DECISION

It is the decision of the Administrative Law Judge that, based on the application filed on August 27, 1996, the claimant is entitled to a period of disability commencing December 11, 1995, and to Disability Insurance Benefits under sections 216(i) and 223, respectively, of the Social Security Act.

Fenton H. Hughes Administrative Law Judge

Date: SEP 26, 2002

LIST OF EXHIBITS

Claimant: Sherry E. Tanner SSN: 562-74-3649 No. No. Description Pages

EXHIBITS ADMITTED IN CONNECTION WITH APPEALS COUNCIL REMAND

JURISDICTIONAL DOCUMENTS NOTICES

NON-DISABILITY DEVELOPMENT

DISABILITY RELATED DEVELOPMENT AND DOCUMENTATION

RECEIVED DURING HEARING

MEDICAL RECORDS

RECEIVED SUBSEQUENT TO HEARING

DISABILITY RELATED DEVELOPMENT AND DOCUMENTATION

RECEIVED DURING REARING

MEDICAL RECORDS

RECEIVED DURING HEARING Exh. Part No. of Exhibit Numbers 1A-2A, 1B-10B, 1D, 1E-11E, 1F-21F in Connection with Prior Hearing(s) 11 B Transcript of Hearing held 6/5/98 31 12 B Notice of Decision — Unfavorable dated 10/19/98 13 13 B Request for Review of Hearing decision/Order filed 12/10/98 2 14 B Action of Appeals Council on Request for Review dated 1/18/00 2 15 B Complaint filed 3/13/00 2 16 B Summons In A Civil Action dated 3/15/00 9 17 B Stipulation and Order of Remand filed 7/5/00 2 18 B Letter dated 5/7/01 from Ira Blatt, attorney 6 19 B Order of Appeals Council dated 2/14/02 4 20 B Letter to Malcolm Brodzinsky, VE dated August 6, 2002 with 5 attached professional qualification 21 B Letter to Dr. David J. Anderson dated August 6, 2002 with 5 attached professiona1 qualification 22 B Letter to Dr. Morris Wasserman dated August 6, 2002 with 4 attached professional qualification 2 D Application for Disability Insurance Benefits filed 1/29/99 4 12 E Disability Report — Adult dated 12/30/98 10 13 E List of Claimant's Recent Medical Treatment, Medications, 4 and Work Background, undated with attachment 14 E Letter Brief of Case by Ira S. Blatt, Attorney for claimant 2 22 F Medical Records covering the period from 3/14/96 to 7/20/99 from Robert Kaye, M.D. 43 23 F Medical Records covering the period from 2/96 to 10/28/98 from James DeVore, M.D. 8 24 F Medical Records covering the period from 3/97 to 3/22/00 from Irv Tessler, M.D. 18 25 F Curriculum Vitae for Irv Tessler, M.D. 22 26 F Medical Records covering the period from 8/26/99 to 3/13/00 from David Gans, M.D. 8 27 F Medical Records covering the period from 2/29/96 to 8/11/00 21 from Mad River Community Hospital 28 F Medical Report dated 8/28/00 from David Daniels, M.D. 2 29 F Medical Report dated 1/17/01 from David S. Gans, M.D. 30 30 F Medical Records dated March 8, 1996 from James DeVore, M.D. 4 31 F Medical Records covering the period from November 15, 1997 5 to March 22, 1999 from Robert Kaye, M.D. 32 F Medical Records dated November 11, 2001 from Mad River Hospital, Emergency Room 4 33 F Lab Reports Covering the Period November 6, 2001 to February 13, 2002 from Mad River Community Hospital 8 34 F Medical Records covering the period from October 27, 1999 to April 29, 2002 from Irv 19 35 F Medical Records covering the period from July 27, 2001 to June 3 10, 2002 from David Gans, M.D. 36 F Medical Report dated June 16, 2002 from Robert Kay; M.D. with 7 Medical Source Statement (Mental) 37 F Medical Records covering the period from May 16, 2002 to June 6 16, 2002 (received date) from North Country Clinic 38 F Depositions of Various Doctors (6), with Curriculum Vitaes and (2) Reports 210 39 F Psychiatric Review Technique Form dated September 11, 2002 by ALJ Hughes 12 12 E Disability Report — Adult dated 12/30/98 10 13 E List of Claimant's Recent Medical Treatment, Medications, 4 and Work Background, undated with attachment 14 E Letter Brief of Case by Ira S. Blatt, Attorney for claimant 2 22 F Medical Records covering the period from 3/14/96 to 7/20/99 from Robert Kaye, M.D. 43 23 F Medical Records covering the period from 2/96 to 10/28/98 from James DeVore, M.D. 8 24 F Medical Records covering the period from 3/97 to 3/22/00 from Irv Tessler, M.D. 18 25 F Curriculum Vitae for Irv Tessler, M.D. 22 26 F Medical Records coveting the period from 8/26/99 to 3/13/00 from David Gans, M.D. 8 27 F Medical Records coveting the period from 2/29/96 to 8/11/00 from Mad River Community Hospital 21 28 F Medical Report dated 8/28/00 from David Daniels, M.D. 2 29 F Medical Report dated 1/17/01 from David S. Gans, M.D. 30 30 F Medical Records dated March 8, 1996 from James DeVore, M.D. 4 31 F Medical Records covering the period from November 15, 1997 5 to March 22, 1999 from Robert Kaye, M.D. 32 F Medical Records dated November 11, 2001 from Mad River Hospital, Emergency Room 4 33 F Lab Reports Covering the Period November 6, 2001 to February 13, 2002 from Mad River Community Hospital 8 34 F Medical Records covering the period from October 27, 1999 to April 29, 2002 from Irv Tessler, M.D./Susan Sherer, RN, APNP 19 35 F Medical Records covering the period from July 27, 2001 to June 10, 2002 from David Gans, M.D. 3 36 F Medical Report dated June 16, 2002 from Robert Kaye, M.D. with Medical Source Statement (Mental) 7 37 F Medical Records covering the period from May 16, 2002 to June 16, 2002 (received date) from North Country Clinic 6


Summaries of

Tanner v. Barnhart

United States District Court, N.D. California, San Francisco Division
Feb 11, 2003
CIVIL NO. C-99-00916 SC (N.D. Cal. Feb. 11, 2003)
Case details for

Tanner v. Barnhart

Case Details

Full title:SHERRY TANNER, Plaintiff v. JO ANNE B. BARNHART, Commissioner of Social…

Court:United States District Court, N.D. California, San Francisco Division

Date published: Feb 11, 2003

Citations

CIVIL NO. C-99-00916 SC (N.D. Cal. Feb. 11, 2003)