United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY, District Judge.
This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner's final decision denying Roschelle McNeil's application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., and her application for supplemental security income under Title XVI, 42 U.S.C. §§ 1381 et seq. McNeil claims she is disabled because she suffers from narcolepsy, cataplexy, and depression. After remand by this court and a second hearing, the Administrative Law Judge concluded that McNeil was not disabled. Because I find that the ALJ's decision was not based on some medical evidence as required, I will reverse and remand for a second time.
I. Procedural History
McNeil filed for disability income benefits and supplemental security income in May 2008, alleging an onset date of January 1, 2007. When her application was denied, she requested a hearing before an administrative law judge. McNeil then appeared with counsel at an administrative hearing on September 23, 2009. McNeil and a vocational expert testified at the hearing.
After the hearing, the ALJ denied McNeil's application, and she appealed to the Appeals Council. In November 2010, the Council denied her request for review.
McNeil appealed to this court, which reversed and remanded on July 5, 2011. McNeil v. Astrue, 4:10CV2305DDN [docket #18]. The court held that the ALJ had appropriately assigned little weight to an opinion from McNeil's treating doctor, but that after so doing, "the ALJ had no other medical opinion to rely on regarding plaintiff's narcolepsy, and scarce medical evidence in the record as a whole." (Tr., p. 345.) Without more medical evidence, the court could not determine what led to "apparent inconsistencies" in the findings about McNeil's residual functional capacity. ( Id. ) Ultimately, the court determined that the ALJ's decision could not have been based on substantial evidence without some medical evidence to support it. The court remanded so the ALJ could obtain and identify more medical evidence to support his conclusion and "discuss [McNeil's] increased medication dosages and determine whether they indicate any worsening" of her impairments. (Tr., p. 347.) The court found that the hypothetical questions posed to the vocational expert were proper at the time but should be reconsidered "to the extent that the ALJ's RFC finding may be modified upon remand." ( Id. )
After remand, a new ALJ conducted a second hearing, at which McNeil and her attorney appeared. Again, McNeil and a vocational expert both testified. After the hearing, the ALJ ruled against McNeil, and again, the Appeals Council denied McNeil's request for review. The ALJ's decision thereby became the final decision of the Commissioner. Van Vickle v. Astrue, 539 F.3d 825, 828 (8th Cir. 2008).
II. Evidence Before the Administrative Law Judge
In the memorandum and order dated July 5, 2011, this court previously described the medical evidence, reports, and testimony from the first hearing before the ALJ. I will not repeat it here. Little evidence has been added to the record. Medical records from after 2011 indicate that McNeil continued to take Provigil to treat her narcolepsy and Zoloft to treat her cataplexy. (Tr., p. 446.) She continued to see Dr. Korgi Hegde at the Clayton Sleep Institute once per year.
It appears that treatment notes from McNeil's 2010 and 2011 visits were not part of the record before the initial ALJ or court decisions. At a visit on January 11, 2010, Dr. Hegde noted that McNeil had been pregnant and then had a miscarriage, and that her symptoms had disappeared during her pregnancy. After the miscarriage, the symptoms returned. She was back on her medication and had "mild cataplexy." (Tr., p. 458.) A year later, at a visit on February 22, 2011, Dr. Hegde wrote that McNeil's "cataplexy is controlled but still has daytime sleepiness." He planned to add Xyrem - after testing McNeil for obstructive sleep apnea - to help with both the cataplexy and the daytime sleepiness. (Tr., p. 457.) At a February 2012 visit, Dr. Hegde noted that McNeil was taking two doses of Provigil daily. He wrote that "she would benefit from 3 but not approved by insurance." (Tr., p. 464.)
McNeil also submitted a letter she wrote to her lawyer from sometime after her February 2012 appointment with Dr. Hegbe. In the letter, McNeil wrote:
... Dr. Hegde would give me samples when either I was uninsured or couldn't afford to purchase my meds. You asked me to insure that the doctor write a statement as to such. Unfortunately, he refused to do so. He explained, that when he would give me samples he did not log the transactions as required for controlled substances. Hence, divulging such a statement could jeopardize his practice.
(Tr., p. 447.)
Sleep Disorders Questionnaire