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Pellin v. Colvin

United States District Court, Eastern District of Missouri, Eastern Division

January 7, 2015

AMY S. PELLIN, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.



This is an action for judicial review of the Commissioner's decision denying Amy Pellin's application for a period of disability, disability insurance benefits, and supplemental security income under Title II and Title XVI of the Social Security Act (Act). Judicial review of the Commissioner's final decision under Title II is available under Section 205(g) of the Act. 42 U.S.C. § 405(g). Review of the Commissioner's final decision under Title XVI is available under Section 1631(c)(3) of the Act. 42 U.S.C. § 1383(c)(3). Pellin alleges that she is disabled because she suffers from chemically induced bronchial reactivity and situational depression (quiescent), but the Administrative Law Judge found that she was not disabled. Because the Commissioner's decision is not supported by substantial evidence I will reverse the Commissioner's final decision and remand this case to the Commissioner for further consideration.

Procedural History

On September 15, 2010, Amy Pellin filed for a period of a period of disability, disability insurance benefits, and supplemental security income. Both applications were denied on November 17, 2010 and Pellin filed a written request for a hearing on December 6, 2010. On March 5, 2012, a hearing was held before an ALJ and on March 28, 2012, the ALJ issued a decision finding that Pellin was not disabled. The Appeals Council denied Pellin's request for review on July 22, 2013. Therefore, the ALJ's determination stands as the final decision of the Commissioner of Social Security.

Evidence before the ALJ

Pellin was thirty-four years old when the ALJ issued his decision. She has a Bachelor's Degree of Science and Biology from the University Of Missouri-St. Louis. Pellin's last reported employment for which earnings for which state or federal taxes were paid was in 2007 at JC Penney's. She also worked at home as an office assistant for her husband's company in 2009 and 2010. Pellin claims she is unable to work because of chemically induced bronchial reactivity, shortness of breath, dizziness, chest pains, and brain fog.

Pellin’s Application for Benefits

In her application for benefits, Pellin stated that the following conditions limited her ability to work: chemically induced bronchial reactivity, shortness of breath, brain fog, cognitive impairment, forgetfulness, chest pain, dizziness, and nausea. (Tr. 148). She claimed that her impairments became severe enough to prevent her from working in January 2007.

In her function report, Pellin said she tried to care for her family, but often had trouble and that her in-laws “usually have to take over my daily activities.” She also stopped her hobbies including biking, running, taking her kids out, and more. To summarize her condition Pellin stated:

I have gone from a carefree, outgoing, personable graduate who was an avid athlete and fun person to someone who is unable to do almost anything w/out wearing a mask and using extreme cautionary measures to just prevent shortness of breath, chest pains, dizziness, cognitive impairment, and other symptoms and complications due to this disability.

(Tr. 177). Pellin also provided episode logs she had kept on instruction from Dr. Tuteur detailing more than 90 episodes where even minimal and incidental exposure to a wide range of triggers caused her to suffer impairments. The triggers included exposure to such diverse things as gasoline fumes, candles, dry-erase markers, and new shoes. (Tr. 198-210, 222-240).

Medical Records

Pellin first reported respiratory problems in 2007. On January 2007, Dr. Charles Sincox M.D., first examined Pellin when she complained of shortness of breath (SOB), dizziness, nausea, chest pain, and numbness in her extremities. On January 22, 2007, a cardiac stress test was performed showing that she suffered chest pains upon physical exertion. Two days later, Pellin was admitted to St. John's Mercy Hospital emergency room on January 25, reporting chest pains and SOB. She was diagnosed with reactive airway disease. Dr. Sincox released her on February 5, saying Pellin could return to work, but referred her to a specialist, Dr. Michael Brischetto, M.D. After an examination Dr. Brichetto stated that Pellin might suffer from reactive airway dysfunction syndrome (RADS) due to chemical solvent exposure. (Tr. 258). Pellin was also examined by Dr. Thomas Hyer M.D., three times between February 5 through August 6, 2007. A pulmonary function test showed mild airway obstruction with FEV1[1]/FVC of 70%. Anything below 80% is abnormal. Dr. Hyer examined Pellin again on May 7 after she tried to work outside surveying and reported that she had chest pain, SOB and trembling hands, he diagnosed her with allergic and possible vasomotor rhinitis.[2] He also found no “permanent injury” and prescribed Pellin Nasonex. On August 6, 2007 he discharged her, describing her as saying her condition was much improved. (Tr. 270).

Pellin saw Dr. Robert Onder M.D., three times between July 3 and August 25, 2009. He diagnosed her with “allergic rhinitis and vasomotor rhinitis” attributing her breathing problems to anxiety and vocal cord dysfunction. Dr. Onder also opined that Pellin's exposure to household chemicals was not injuring her health or lung function. (Tr. 532). On September 8, 2009 Pellin saw Dr. Evelio Sardina M.D. Dr. Sardina called her SOB a “chronic problem” and diagnosed her with dyspnea, [3] cough, allergic rhinitis due to abnormal pulmonary functioning test, and RADS. He also stated that he believed that Pellin's RADS were “likely from inhalational occupational exposure, ” related to her work with solvents. (Tr. 363). He described the problem as recurrent and stated it was getting worse. On October 7, Dr. Sardina's nurse instructed Pellin to avoid triggers including “tobacco smoke, chlorine, gasoline fumes, detergent, bleach, xylene, and mites.” Dr. Sardina referred Pellin to an occupational asthma specialist, Dr. Peter Tuteur, M.D.[4] (Tr. 368).

Before seeing Dr. Tuteur, Pellin was once again examined by Dr. Sincox for an assessment in order to obtain a referral. Pellin told Dr. Sincox that she was having frequent episodes of reactive airway problems from a wide range of triggers, but particularly vehicle exhaust fumes. An examination of the record and a physical was positive for multiple severe respiratory symptoms including SOB, coughing, and chest tightness. Dr. Sincox diagnosed her with RADS with multiple triggers and on January 22, 2010 he authorized the referral to Dr. Tuteur. (Tr. 578-79).

Dr. Tuteur first saw Pellin on February 26, 2010 for further evaluation of her pulmonary health status. Dr. Tuteur examined Pellin and concluded that her symptoms were a “response to the exposure to volatile chemicals (xylene and glycol ether).” This had resulted in systemic and respiratory symptoms all of which subsequently recur not only in her workplace environment, but also when exposed to a wide variety of irritants including perfume, hairspray, and diesel exhaust. Symptoms resulting from exposure to these triggers could last for days and he noted a specific occasion where exposure to a chlorine tablet lasted for a month. He also noted that while Pellin's respiratory systems tended to improve when treated with a beta2 agonist, they were not resolved and that systemic symptomatology could last for weeks. He recommended that she continue to take her medication, but did not perform any additional tests because of Pellin's pregnancy. (Tr. 538-540)

According to Dr. Tuteur “The clinical story, both subjective and objective data, strongly and rather uniquely indicate the presence of chemically induced bronchial reactivity.” (emphasis in original). As treatment he prescribed albuterol (2 puffs every 4 hours) and Serevent in order to blunt an “inadvertent environmental breach” that could exacerbate her condition. He also instructed Pellin to do everything possible to prevent exposure to triggers. To accomplish this he requested that she remove all aerosol sprays from her home, use only water to clean her home, and take other steps to avoid triggers along with keeping a diary to help develop a list of irritants. (Tr. 539-40).

Dr. Tuteur examined Pellin again on May 7, 2010, and confirmed the bronchial reactivity diagnosis. Pellin had followed Dr. Tuteur's recommended treatment course, but despite this had suffered breaches to the environment resulting in breathlessness, chest pains, and headaches that lasted for several days. Dr. Tuteur conducted both a physical examination and a methaholine challenge test, [5] which was “markedly positive . . . indicative of bronchial reactivity.” He concluded that based on “all available medical data it is unequivocal that Ms. Pellin has chemically induced bronchial reactivity.” (Tr. 545). Dr. Tuteur advised Pellin to avoid areas known to contain triggers (like Walmart), use special washers that use a tiny amount of soap and told her that if her home was professionally cleaned she leave for at least 24 hours. He also recommended that she continue treatment with Advair. Pellin had also started wearing an N95[6] mask to block odors when outside, but this failed to prevent exposure to triggers. (Tr. 558).

On July 9, 2010, Dr, Tuteur stated his diagnosis[7] and also stated that exposure to workplace environment was the cause. He also stated that her condition was permanent and that Pellin needed “fastidious environmental control . . . at all times.” (emphasis in original). When asked about Pellin's employability on the open market Dr. Tutuer responded “Not at all easily. Environmental control must be maintained so that triggers . . . are totally avoided.” (emphasis in original) (Tr. 536).

On September 17, 2010 Dr. Tuteur stated that Pellin and her husband were “aggressively pursuing environmental control” but that inadvertent breaches had occurred leading to SOB, chest tightness, dizziness, and other symptoms. He went on to state, “from a medical standpoint she [Pellin] is totally and permanently disabled.” (Tr. 554).

Pellin visited Dr. Tuteur again on March 11, 2011. After an examination he reiterated that Pellin was “totally and permanently disabled to such an extent that she is unable to work in an environment, which even from time-to-time, may contain triggers that tend to exacerbate the clinical condition.” On September 23, 2011, Dr. Tuteur examined Pellin again. He found that Pellin was still attempting fastidious environmental control, but that she was “regularly thwarted” by a variety of circumstances ranging from ambient exposure to perfume to driving behind an old vehicle in traffic. He also noted that most of her difficulties involved “routine chores around the home and in the neighborhood.” Dr. Tuteur stated that Pellin was having difficulty adjusting to her new limitations and restrictions and once again emphasized the necessity of avoiding triggers with her. (Tr. 676-679).

On November 6, 2011, Pellin reported to Mercy Hospital emergency room complaining of SOB after going to multiple stores the day before. Pellin stated that because of her chemical hypersensitivity she had a severe respiratory response to accidentally inhaling air freshener and clothing perfume. (Tr. 682-84). As treatment, the hospital prescribed prednisone to take with ...

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