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Theresa Purvis, Security v. Commissioner of Social

February 23, 2011


The opinion of the court was delivered by: Wigenton, District Judge.


Before the Court is Plaintiff Theresa Purvis‟s ("Plaintiff" or "Purvis") appeal of the Commissioner of Social Security‟s (the "Commissioner" or "Defendant") final decision that she is not disabled under Title II, 42 U.S.C. § 1614(a)(3)(A), of the Social Security Act (the "Act"). The appeal is decided without oral argument pursuant to Local Civil Rule 9.1(b). The Court has subject matter jurisdiction pursuant to 42 U.S.C. § 405(g). Venue is proper under 28 U.S.C. § 1391(b). For the reasons set forth below, the Court remands the Commissioner‟s decision.


i.Procedural History

On July 22, 2005, Plaintiff applied for Supplemental Social Security Income ("SSI") claiming disability due to bronchial asthma. (ALJ‟s Decision at 1.) The Commissioner denied Purvis‟s claim at the initial and reconsideration stages. (Id.)Subsequently, Purvis requested a hearing with an Administrative Law Judge ("ALJ"). (Id.) Pursuant to her request, a hearing was scheduled before ALJ Michal L. Lissek on June 11, 2008. (ALJ‟s Decision at 1.)

Thereafter, on January 21, 2009, the ALJ denied Plaintiff‟s claim because "[c]onsidering [her] . . . age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that [] [she] can perform." (Id. at 12.) The ALJ also found that Purvis‟s symptoms were not credible "to the extent that they are inconsistent with the [] residual functional capacity assessment," which concluded she was capable of performing sedentary work pursuant to 20 C.F.R. § 416.967(a). (Id. at 9.) Furthermore, the ALJ found that although Plaintiff‟s bronchial asthma, which was exacerbated by her obesity and angio-edema, was a severe impairment, it did "not meet or equal any of the listed impairments . . . ." (Id. at 8.) Purvis appealed the ALJ‟s decision, and her request for review was denied. (AC Denial at 1.) Subsequently, Purvis filed this appeal. Purvis alleges that the ALJ‟s credibility findings are not supported by substantial evidence because the ALJ failed to: (1) consider her subjective complaints, and (2) properly evaluate her obesity as a listed impairment. (Pl.‟s Br. 4.)*fn1

ii. Personal and Employment History

Plaintiff is forty years old with four children. (Tr. 3-4; Pl.‟s Br. 5.) Her highest level of education is the 11th grade. (Tr. 4.) However, she acquired some vocational training at the Newark Business School, where she became certified in food handling and preparation. (Id.)

From 2001 to 2003, Purvis was a housekeeper at Gerri‟s House Cleaning Company ("Gerri‟s"). (Tr. 5-6.) Plaintiff‟s duties there included dusting, vacuuming, taking out the garbage, and washing dishes. (Tr. 6; Pl.‟s Br. 18.) Plaintiff alleges she left her job at Gerri‟s because it aggravated her asthma. (Tr. 6.) Next, from 2003 to 2004, Purvis was employed in the food service department at Woods Service Company. (Pl.‟s Ex. 6E at 2.) Purvis‟s last place of employment was at East Orange Hospital (the "hospital"). (Tr. 5.) Purvis worked at the hospital from 2004 to 2005. (Pl.‟s Ex. 6E at 2.) Her responsibilities there included cleaning and managing the hospital‟s dietary menu. (Id.; Pl.‟s Br. 18.)

iii. Medical History

Plaintiff, who is allergic to animals, was diagnosed with asthma at the age of twenty-seven.*fn2 (Tr. 7, 14; Pl.‟s Ex. 8F at 1.) In November 2005, during a consultation with Dr. Henry Rubenstein, Purvis asserted that she had about three asthma attacks a week. (Pl.‟s Ex. 8F at 1.) One year later, Dr. Zaza Cohen ("Dr. Cohen"), a specialist, diagnosed Purvis with possible "deconditioning, or another pulmonary parenchymal disease," but her symptoms were "suspicious of [a] diagnosis of asthma." (Pl.‟s Ex. 11F at 5; Pl.‟s Br. 11.) At the ALJ hearing, Plaintiff testified that "she receives at least six attacks per year." (Tr. 3.) She also maintains that she has gone to the emergency room about eight times within the past year due to her asthma, and she was hospitalized for ten days due to a severe asthma attack. (Pl.‟s Ex. 8F at 1.) During an asthma attack, Purvis claims she cannot breathe, she begins to shake, and she eventually blacks out. (Tr. 14.) Moreover, Purvis alleges her asthma attacks last "for a month or so," and that she uses her nebulizer daily. (Id. at 14-15.) Other medications Plaintiff uses to control her asthma include Advair, Albuterol, Singulair, and Combivent. (Pl.‟s Ex. 9E at 4.) However, Dr. Cohen noted that Plaintiff had difficulty controlling her asthma despite the use of inhalers and other medications. (Pl.‟s Ex. 11F at 5.)

On July 3, 2008, Dr. Cynthia Paige ("Dr. Paige"), Purvis‟s treating physician, diagnosed Plaintiff with "recurrent anaphylaxis [] mucosal edema and airway compromise at least [five] times per year [] requiring intubation on one occasion in 2007 [] the inciting allergen is unknown." (Pl.‟s Ex. 15F at 1.) According to Dr. Paige, Purvis suffers from vocal cord dysfunction, recurrent hoarseness, severe obesity, severe persistent asthma, thyroid nodules, and nodular densities of the nasopharynx. (Id.) Additionally, Dr. Paige opined that Purvis has "physical impairments that severely restrict her function," (id.), and that overall her condition could be fatal. (Id. at 2.)

Furthermore, Purvis suffers from a thyroid condition. (Id. at 8.) She testified that her neck swells up as a result of the thyroid, and that she has to stick herself in the neck with a pin to alleviate the swelling. (Id.) Purvis further alleges that she has difficulty speaking when her neck swells. (Pl.‟s Ex. 15F at 1.) According to Plaintiff, the limitation on her ability to speak can last up to three or four weeks. (Id.) However, a December 6, 2005 ultrasound revealed that Purvis‟s "thyroid gland was within normal limits in size." (ALJ‟s Decision at 5.)

Due to the above ailments, Purvis contends that she has been advised not to travel by herself and that she is unable to do any past relevant work or other work in the national economy. (Tr. 3, 11, 15.) Essentially, Plaintiff contends that her asthma is so severe that she is unable to communicate effectively. (Id. at 12.) She also claims that due to her physical condition, she is unable to sit for long periods of time without experiencing pain from her left thigh to her knees. (Id.) Plaintiff further alleges that she has a torn tendon in her left foot which makes sitting more painful. ...

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