Terri Kalmbach v. Commissioner of Social Security

409 F. App'x 852
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 7, 2011
Docket09-2076
StatusUnpublished
Cited by77 cases

This text of 409 F. App'x 852 (Terri Kalmbach v. Commissioner of Social Security) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Terri Kalmbach v. Commissioner of Social Security, 409 F. App'x 852 (6th Cir. 2011).

Opinions

WISEMAN, District Judge.

Plaintiff-Appellant Terri Kalmbach appeals a district court order affirming an administrative law judge’s denial of Kalmbach’s application for Disability Insurance Benefits (DIB). Kalmbach presents two issues for review: (1) whether the Commissioner properly evaluated the medical evidence in the record, and (2) whether the Commissioner properly evaluated Kalmbach’s subjective complaints. Because we find that the ALJ failed to provide good reasons for rejecting the opinions of Kalmbach’s treating physicians, that his rejection of Kalmbach’s subjective complaints is not supported by substantial evidence, and further that proof of disability is strong and there effectively is no opposing evidence, we reverse and remand for an award of benefits.

I. PROCEDURAL BACKGROUND

Kalmbach applied for DIB on July 26, 2005, alleging that she had become disabled on April 27, 2005, by fibromyalgia, arthritis, and carpal tunnel syndrome. Her claim was denied initially. She requested a hearing before an administrative law judge (ALJ), which was conducted on November 8, 2007. Kalmbach, who was represented by an attorney, appeared and testified at the hearing. A vocational expert also testified. On February 7, 2008, the ALJ, Bennett S. Engelman, issued a decision finding that Kalmbach was not disabled. The Appeals Council denied [854]*854Kalmbach’s request for review on June 11, 2008, rendering the ALJ’s decision the final decision of the Commissioner. Kalmbach sought review of the Commissioner’s decision in the United States District Court for the Eastern District of Michigan. After briefing by the parties, the magistrate judge recommended that judgment be entered in favor of the Commissioner. Over Kalmbach’s objections, the district court adopted the magistrate judge’s report and recommendation and affirmed the Commissioner’s final decision, finding that the ALJ had applied the correct legal standards and his decision was supported by substantial evidence in the record. This appeal followed.

II. THE ADMINISTRATIVE RECORD

A. The Medical Evidence

Upon referral from Kalmbach’s longtime family physician, Dr. Richard Beison, Dr. Vladimir Ognenovski, a specialist in rheumatology, began treating Kalmbach in May 2001 for complaints of progressive fatigue and joint pain. (AR 297.) At the time she was forty-three years old, had recently been diagnosed with non-insulin-dependent diabetes mellitus, was “moderately overweight,”1 and was also being treated for hypothyroidism. On her first visit with Dr. Ognenovski, Kalmbach described a one-year history of progressive fatigue, with disturbed sleep and excessive day-time somnolence, as well as a ten-year history of progressive pain affecting all of her joints, and morning stiffness. Her major complaint was fatigue; although she worked full-time, she indicated she was incapable of doing much after work. (AR 297.) Dr. Ognenovski’s impression was fibromyalgia, and he also referred her to a sleep clinic for evaluation and treatment of possible sleep apnea. He prescribed a trial of non-steroidal medication on an as-needed basis and recommended an exercise program. (AR 298-99.)

In August 2001, Dr. Ognenovski observed that Kalmbach’s medical history was notable for hypertension, diabetes, asthma, hypothyroidism, TMJ, carpal tunnel syndrome, gastroesophageal reflux, and obesity, as well as suspected sleep apnea. Kalmbach reported that she was engaging in physical therapy and water aerobics and was feeling “less stiff and more mobile” and, despite continued arthralgia and myalgia pain, was “more functional and comfortable.” (AR 307.) She continued to work full time, but occasionally took days off when she was more symptomatic. She had full range of motion and strength, but a “focused muculoskeletal exam” revealed “multiple soft-tissue tender points,” a total of 18 out of 18. Dr. Ognenovski’s assessment was “fibromyalgia with ongoing arthralgia at baseline” and probable sleep apnea. (AR 307.) He recommended continued use of muscle relaxants and non-steroidal anti-inflammatory medications (NSAIDs) (ie., Celebrex and Vioxx) as needed, as well as cardiovascular exercise.

Over the next several years, Kalmbach saw Dr. Ognenovski two or more times per year for follow-up treatment of her fibromyalgia. In October 2001, Dr. Ognenovski discussed with Kalmbach the possibility of reducing her hours at work “as a way of coping with her [fibromyalgia] symptoms and fatigue.” (AR 309.) In February 2002 he noted that she had been diagnosed with sleep apnea, had begun using a Continuous Positive Airway Pressure (CPAP) machine, and, as a result, she was sleeping somewhat better and feeling less fatigued. He also noted that she was working re[855]*855duced hours, and that her fibromyalgia symptoms were much improved as a result of better sleep and less work, though she “of course” continued to take NSAIDs and muscle relaxants.

In July 2002, she was still working reduced hours, was sleeping better, and her energy level remained “stable.” She was “less symptomatic,” but Dr. Ognenovski recommended increased Vioxx and Ultram for three to five days at those times when she was suffering flare-ups of more intense pain. (AR 314.) In May 2003, Dr. Ognenovski noted Kalmbach did “not feel too bad,” but that her energy level fluctuated and she continued to have arthralgia and stiffness in the morning, as well as occasional day-time arthralgias and “occasionally feeling in a fog,” which affected her performance. He also noted she tended to be “more symptomatic in the winter months.” (AR 320.) She was concerned at that time about the possibility of losing her job. Dr. Ognenovski believed that, “overall, she would benefit by remaining functional,” and encouraged her to continue working if possible. (AR 320.) In September 2004, he noted that her fibromyalgia was at “baseline” and that she “remain[ed] fairly functional” and continued to work part-time. (AR 388.)

In June 2005, Dr. Ognenovski noted Kalmbach had lost her job, had not been able to find new employment, and was “looking into the possibility of pursuing medical disability.” (AR 331.) She complained of new left-knee pain. Her fibromyalgia was “unchanged,” with ongoing generalized arthralgia and myalgia, morning stiffness, and fatigue. (AR 331-32.) In October 2005, Dr. Ognenovski noted that in addition to fibromyalgia Kalmbach had osteoarthritis in both knees, morbid obesity and sleep apnea. Kalmbach continued to report generalized pain and fatigue, as well as morning stiffness. Dr. Ognenovski’s impression was “[fjibromyalgia with ongoing symptoms.” He noted: “I realistically did not expect a significant change in her symptoms given the number of comorbid conditions that could contribute to the symptoms of fibromyalgia,” in particular, her obesity. He noted on that day that she had requested a formal statement from him regarding her disability, and he believed that, at that point, she was “totally disabled from any type of work.” (AR 211.)

Kalmbach’s condition was basically unchanged through 2006 and 2007, except she was diagnosed with osteoarthritis in her left knee and tenderness over the lateral epicondryles of both elbows as well as bursitis in her hips. She continued to have soft-tissue tenderness throughout, consistent with fibromyalgia. Dr. Ognenovski continued to prescribe NSAIDs and muscle relaxants.

Dr.

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409 F. App'x 852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/terri-kalmbach-v-commissioner-of-social-security-ca6-2011.