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Bruce Rothe v. Michael J. Astrue

February 22, 2011

BRUCE ROTHE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Plaintiff brings this action under the Social Security Act, 42 U.S.C. 405(g), seeking a reversal of defendant's decision to deny disability insurance benefits. In the alternative, plaintiff seeks a remand to the Social Security Administration ("SSA") for a new administrative hearing. The issue presented is whether the administrative law judge ("ALJ") based his decision to deny benefits on an adequately developed record that contained substantial evidence to support such a denial. The Court holds that this finding is based on sufficient and substantial evidence in the record. Accordingly, defendant's motion for judgment will be granted and plaintiff's motion for judgment will be denied.

BACKGROUND

Plaintiff Bruce Rothe is a 59-year-old man who resides in South Australia. He has two bachelor's degrees, two master's degrees, and a doctorate. (Administrative Record ("AR") at 124.) He has prior work experience as an architect and a university lecturer. (AR at 89, 116, 119, 127-29.) On September 28, 2004, plaintiff filed applications for disability insurance benefits alleging that he had been disabled since June 1, 2002, due to multiple chemical sensitivity ("MCS"). (AR at 17, 83-86.) His claims were denied both initially and upon reconsideration. (AR at 17, 29-32, 36-37.) Thereafter, he received a hearing before an ALJ, who also denied his claims. (AR at 17-26.) The Appeals Council affirmed the decision, thus adopting it as the final decision of the agency. (AR at 9-12.)

I. EVIDENCE BEFORE THE ALJ

The evidence before the ALJ consisted of (1) SSA disability and work history reports completed by plaintiff; (2) medical records from several doctors who had treated plaintiff over a twelve-year period; (3) records from Australian social service agencies, including Centrelink and Southern Fleurieu Health Services ("SFHS"), where plaintiff received services; and (4) plaintiff's written statement added to the record at the hearing (from which he was absent).

A. Plaintiff's Disability and Work History Reports

In his disability report filed in May 2004, plaintiff reported that he suffered from MCS that limited his ability to work because it caused "brain fog, limb collapse, fatigue due to offactory [sic] and contact with chemicals including print, fragrance, [and] building materials." (AR at 118.) Plaintiff reported that he addressed the symptoms by seeing "dozens of doctors over time" and by changing his profession and activities. (AR at 118, 121.) Plaintiff reported that his MCS was so severe that he had a reaction to the SSA forms because they were "offgasing [sic] chemicals causing brain fog, confusion, blurred vision, and failed hand coordination." (AR at 126.) Plaintiff noted the same issue with the work history report forms also filed in May 2004. (AR at 134.)

B. Medical Records

Plaintiff's medical records cover a twelve-year span, including records from his primary care physicians, a respiratory specialist, an immunologist, an endocrinologist, and emergency hospital visits. In addition, his physicians wrote to the SSA explaining that plaintiff was disabled because of his condition.

In 1996, Dr. Douglas McEvoy, a respiratory specialist, diagnosed plaintiff with "mild obstructive sleep apnea" which caused daytime sleepiness that was "objectively not severe, and [was] probably affecting his functional abilities later in the day to a mild degree only." (AR at 169-85.) After attempting various interventions to address plaintiff's sleep apnea, Dr. McEvoy again concluded that it was not severe and made no plans to see plaintiff again. (AR at 169.) Dr. Nick Antic, a physician in Dr. McEvoy's office, saw plaintiff again in August 2003 and reported that plaintiff's sleep apnea was still "very mild," and "given its minimal impact on sleep architecture[, it was] likely to be less significant in him." (AR at 217.)

Plaintiff received psychiatric services from 1996 to 1998. (AR at 256-57, 261-63.) Medical bills indicate that plaintiff saw psychiatrist Dr. Christine Hilton four times between December 1996 and February 1997. (AR at 257.) Receipts show that plaintiff saw psychiatrist Dr. D.J. Rampling in March 1997 and received a prescription for Zoloft. (AR at 256.) Letters show that plaintiff was scheduled to see psychiatrist Dr. Richard Newcombe in July and September 1998. (AR at 261-63.) No treatment notes, formal diagnoses, or other psychiatric records appear in the administrative record. (AR at 256-57, 261-63.)

In May 1998, immunologist Dr. Allan Gale treated plaintiff for allergies. (AR at 189.) Dr. Gale reported that "all skin prick tests for common inhalants and foods were all negative with normal reactivity to histamines," making extrinsic allergy an improbable cause of plaintiff's problems. (Id.) Dr. Gale saw plaintiff a year later but did not report a change in his diagnosis. (AR at 187-88.)

At the suggestion of Dr. Gale, plaintiff saw endocrinologist Dr. Ian Chapman in mid-1999. (AR at 191-92.) Tests revealed that plaintiff's blood sugar levels were normal and that he had "neither diabetes nor impaired glucose tolerance." (AR at 191.) Dr. Chapman also explained to plaintiff that there was "no definite evidence" for insulin resistance, a condition plaintiff was concerned he might have. (AR at 192.) Finding plaintiff's condition normal, Dr. Chapman made no plans to see plaintiff again. (Id.)

In August 2001, plaintiff began seeing immunologist Dr. David Gillis. (AR at 198.) Dr. Gillis treated plaintiff for vasomotor rhinitis and chronic dry skin but reported that several aspects of both did not have a "particularly . . . good evidence base," urging plaintiff to continue treatment through dietary restrictions. (Id.) On a later visit, Dr. Gillis reported that "there does not seem to be any conclusive evidence that diet has given rise to problems." (AR at 197.) In May 2002, immunologist Dr. Frank Kette reported that plaintiff's "nasendoscopy, prick skin testing, and RAST studies" had all been negative and that a surgeon had found a CT scan of plaintiff's sinuses did not show any surgical problems except a septal spur. (AR at 215.) The record includes Dr. Gillis' and Dr. Kette's treatment notes from 2002 through 2006. (AR at 200-10.)

Dr. Bruce Wauchope, plaintiff's current primary care physician, began seeing him in late 2002. (AR at 234.) Plaintiff saw Dr. Wauchope twelve times between June 1, 2002, and June 30, 2003, the period when plaintiff was qualified to receive SSA disability benefits. (AR at 19, 235-38). Dr. Wauchope's notes detail plaintiff's symptoms but also reflect that "[h]e seems to be obsessive about this; I am not sure if he is imagining this." (AR at 235-38.) He also notes that plaintiff was feeling better on several visits throughout 2003. (AR at 237-39.) Dr. Wauchope's records include the results of several rounds of blood work conducted throughout 2002 and 2003 and physical evaluation charts from December 2002 and January 2003. (AR at 240-55, 258-60.) Plaintiff tested positive for rickettsia and Epstein-Barr; the other tests, including those for hepatitis A, B, and C, Lyme disease, Ross River virus, and dengue virus, came back negative. (AR at 240-55.)

Dr. Wauchope wrote two letters to the SSA advocating for plaintiff. The first from 2006 reports that plaintiff has chronic fatigue syndrome ("CFS") and MCS and has been unable to work since December 2000. (AR at 166.) The second from 2008 reports that plaintiff suffers from depression, fibromyalgia, and CFS with chemical sensitivity and that these conditions have rendered him incapable of work since the time Dr. Wauchope started treating him in 2002. (AR at 272.) On July 18, 2006, Dr. Gillis also wrote a letter to the SSA on plaintiff's behalf, writing that plaintiff suffers from CFS and "chemical sensitivity that is managed by avoidance," both of which are so severe "that he was last able to work at the end of 2000." (AR at 270-71.)

Plaintiff made emergency visits to Royal Adelaide Hospital twice for reasons unrelated to the conditions he claims cause his disability. (AR at 193-94, 213.) First, plaintiff was treated for an insect bite to his arm on October 30, 1999. (AR at 193-94.) Second, plaintiff was diagnosed with acute appendicitis, had an appendectomy on July 13, 2001, and was released from the hospital a week later. (AR at 213.)

On July 28, 2005, an SSA Office of Disability ("ODO") physician reviewed the medical records. (AR at 165.) The physician noted plaintiff's condition as "generalized tiredness, lethargy, and fatigue diagnosed as chronic fatigue syndrome" and MCS managed by avoidance of aggravating agents. (Id.) However, the physician reported that "[t]here are no objective findings to document the presence of a severe impairment" during the time plaintiff qualified for benefits. (Id.)

C. Australian Social Service Records

Plaintiff receives a Disability Service Pension from Australian agency Centrelink and living assistance organized by a social worker through Australian agency SFHS. (AR 106-07, 219-33.) Plaintiff ...


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