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Mandler v. Colvin

United States District Court, D. Nevada

March 9, 2015

CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

FINDINGS AND RECOMMENDATION Motion to Remand (Dkt. #14) Cross-Motion to Affirm (Dkt. #17)

GEORGE FOLEY, Jr., Magistrate Judge.

This case involves judicial review of administrative action by the Commissioner of Social Security denying Plaintiff Avner Mandler's claim for disability benefits under Title II of the Social Security Act. Plaintiff's Complaint (Dkt. #1) was filed September 9, 2013. Defendant's Answer (Dkt. #7) was filed December 5, 2013, as was a certified copy of the Administrative Record ("AR"). (Dkt. #8). Plaintiff filed his Motion to Remand (Dkt. #14) on February 18, 2014. The Commissioner filed her Cross-Motion to Affirm and Opposition to Plaintiff's Motion for Reversal and/or Remand (Dkt. #17 and #18) on May 5, 2014. This matter has been referred to the undersigned United States Magistrate Judge for Findings and Recommendations.


I. Procedural History.

On June 26, 2010, Plaintiff filed a Title II application for a period of disability and disability insurance benefits, alleging that his disability began on July 1, 2008. AR 32. Plaintiff's application for benefits was initially denied by the Social Security Administration on September 17, 2010. AR 71. Upon reconsideration, it was again denied on March 17, 2011. AR 78. Plaintiff requested a hearing before an Administrative Law Judge (ALJ) and testified at a hearing before the ALJ on February 13, 2012. AR 45-57. Vocational Expert Jack M. Dymond also testified at the hearing. AR 58-60. The ALJ found that the Plaintiff was not disabled between July 1, 2008, and February 28, 2012, the date of the ALJ's decision. AR 32-39. Plaintiff filed an appeal with the Appeals Council on April 24, 2012 which was denied on June 4, 2013. AR 5-6. Plaintiff then commenced this action for judicial review pursuant to 42 U.S.C. ยง 405(g).

II. Factual History.

A. Disability and Function Reports.

Plaintiff Avner Mandler was born on August 6, 1962. He was 47 years old when he applied for disability benefits on June 26, 2010. AR 132. He is 5'7" tall and weighs 200 pounds. AR 135. At the time of his application, Plaintiff was married and had two children. AR 122-123. Plaintiff completed four or more years of college. Following his discharge from the United States Navy in 1996, Plaintiff was employed in an executive position with the Boy Scouts of America and in various positions selling time shares, cars, and insurance. AR 136.

The Plaintiff stopped working on July 1, 2008 and alleges that he became disabled on that same day. AR, 132, 135. In a Field Office Disability Report completed on July 7, 2010, Plaintiff listed 10 different conditions that limit his ability to work: Epstein-Barr virus, chronic fatigue syndrome, memory loss/confusion/inability to focus, sleep deprivation, recurrent viral pneumonia, bronchial asthma, chronic sinus disease/infections, essential tremors, bio film - impervious layer/lipid layer in sinus, and sleep apnea. AR 135. He listed 14 medications he takes to combat or control his ailments. AR 138. In the general remarks section of the disability report, Plaintiff stated:

I am a Disabled Veteran with a 80% disability rating. I petitioned the VA and I am awaiting a decision on an increase to 100% due to health reasons and unemployability. I was originally at 60% upon retirement in 1996, I was raised to 80% in 2002 due to continuous sinus operations with no relief. I have had a UPPP procedure to correct the Sleep Apnea, however this did not prevent me from needing the assistance of the CPAP machine in 2008. I take medication through a sinus nebulizer 2 times a day as well as my other medications. Since my primary care doctor and my allergy/asthma immunology doctors have exhausted all measures available to them to help me, they have started referring me to specialists at UCLA which require me to travel to California for treatment. In the past six months, I have had 3 doctor appointments in California. I had a regular sleep study done in 2008, a regular sleep study with an extended portion (2 day study) in 2009 and now will be doing another sleep study in August 2010. I am awaiting a referral to an infectious Disease Doctor at UCLA as well. You will find documentation in my military medical record of Asbestos Exposure and my health slowly declined since that time and unfortunately has continued through today. I am told the Epstein Bar Virus takes 5 to 6 years before recovery is seen, if recovery is even possible. My immune system is continuously fighting itself to recover to no avail. It i (sic) like a vicious circle with no end. In addition to all the other medication I am on and the requirement of daily naps lasting between 1 to 4 hours just to make it through dinner it is not an enjoyable life to lead, however, these are the cards that I have been dealt and continuous doctor visits and daily medication to include daily nebulizer treatments is now my life.

AR 144-145.

In his Function Report, dated August 21, 2010, Plaintiff stated that he spends his days trying to do things around the house but usually loses all energy and has to take a 2-3 hour nap. He then gets up for dinner and goes right back to bed. AR 174. Since his symptoms arose, he has been unable to work full time, focus, or remember things. Id. Even with CPAP treatment, he still suffers from sleep deprivation. He shaves some days, dresses some days, and tries to bathe every day, but sometimes bathes every other day. AR 174. He no longer cooks daily, as he did before the symptoms arose. He either is too tired, or he loses focus and ruins the food. He sometimes forgets if he has taken his medication. He is able to do laundry once every two weeks, but it takes him all day because of his memory problems. AR 175. He can drive a car, handle a savings account, and count change. AR 176. His conditions affect his ability to lift, squat, bend, stand, reach, walk, kneel, talk, climb stairs, see, complete tasks, or follow instructions. He can only walk 200 feet before needing to stop and rest. His attention span varies due to fatigue. AR 178.

Plaintiff's adult daughter, Mairead Christine Mandler, submitted a Third Party Function Report on August 1, 2010. AR 157-164. Ms. Mandler stated that she sees her father 3-4 times a week and talks to him every day. AR 157. She stated that Plaintiff "has chronic fatigue and bronchial asthma which has reduced his ability to work or even complete some day to day activities. He gets drained and weak when doing simple activities and has to lay down in order to prevent him from becoming even sicker." Id. In regard to Plaintiff's daily activities, Ms. Mandler stated that "[h]e wakes up and eats and trys (sic) to complete things around the house but becomes tired and has to go back to bed till dinner. He eats dinner and socializes for a while before needing to go back to bed." AR 158. Even with use of a CPAP machine, Plaintiff still wakes up 5-6 times a night. Id. Plaintiff's illness does not affect his ability to dress. He tries to bathe daily, but it is sometimes a challenge. When he is too weak to get out of bed, he does not shave for days. He is otherwise able to take care of his personal hygiene. AR 158. Ms. Mandler stated that Plaintiff needs reminders to take his medications. AR 159. Plaintiff is able to prepare his own meals "once-twice a month" and it takes him an hour to do so. Id. She stated that Plaintiff used to cook daily, but now rarely does so because "he has little energy and is to (sic) weak to prepare meals and need (sic) the help of his wife to cook his meals." AR 159. Plaintiff "does laundry once every two weeks and it takes him all day." Id.

Ms. Mandler stated that Plaintiff is able to drive and ride in a car and can go out alone. AR 160. He is able to go food shopping "3-4 times a month for at least an hour." AR 160. He is able count change, handle a savings account, checkbooks and money orders. Id. Plaintiff no longer engages in hobbies such as cooking, bike riding, going to the gym, walking his dog, dancing or camping. AR 161. He no longer belongs to the Kiwanis Club and does not do volunteer work as he did before his illness. Plaintiff talks on the phone, sends emails and "will visit with people if they come to him." He goes to doctors offices and his daughter's house on a regular basis. AR 161-162.

Ms. Mandler stated that Plaintiff can lift only 15 pounds, and when bending he has a hard time getting back up. He gets weakness in the legs while standing and can only walk 200 feet without stopping to rest for 10 minutes. He has loss of breath when climbing stairs. AR 162. Plaintiff sometimes mumbles and takes a while to get out his thoughts. His hearing has become worse. His eyes get tired and it affects his sight. Plaintiff forgets things easily, which affects his ability to complete tasks and follow instructions. AR 162, 164. Plaintiff does not finish what he starts, but is able to follow instructions "pretty well." As far as spoken instructions, "he forgets things sometimes and has be (sic) retold instructions." AR 162. Plaintiff gets along pretty well with authority figures. He gets easily stressed and does not handle change in routine well. Ms. Mandler stated that Plaintiff "sleeps all the time and gets upset when he cannot complete a task.' AR 163.

B. Plaintiff's Hearing Testimony.

Plaintiff testified at the February 13, 2012 hearing that he was medically retired from the Navy in 1996 due to chronic sinusitis, chronic bronchial asthma, and delayed gastric emptying (acid reflux). AR 48-49. Plaintiff testified that his last job was in timeshare sales. He stopped working in July 2008 because he ended up in the hospital with full-blown viral pneumonia and mononucleosis. AR 49. He stated that he had spent the last three years trying to find a cure for his conditions. Id. Plaintiff testified that chronic fatigue and sleep deprivation are the main things that prevent him from working. AR 49. He has been diagnosed with severe sleep apnea and uses a CPAP machine, but it does not help. AR 50. Plaintiff testified that he has a disability rating from the Veterans Administration ("VA"). He initially received a 60% disabled rating: followed by a rating of 80% in 2002 where he remained until 2008. He waited a year to file for an increase in his disability rating because he was hoping he would recover and get better. He stated: "[W]hen I saw I didn't recover and I was being told by doctors that I would not recover, I petitioned the VA and they put me through a year of doctor visits, tests, evaluations." AR 50. He was then rated as 100% disabled and unemployable. Id.

Plaintiff testified that his days consist of driving his stepdaughter to school, then going back to sleep for a while, having lunch, picking up his stepdaughter, and then usually going back to sleep until dinner. AR 51. He occasionally does some housework and tries to do his own laundry once a week, but it sometimes ends up being every two weeks. His wife takes care of everything else. Id. He suffers from fatigue throughout the day. AR. 52. He also has a herniated disc in his lumbar spine, L5-S1, which precludes him from prolonged standing or walking. He estimated that he could stand for 15 minutes out of every hour before his "legs go completely numb." Id. Plaintiff also testified that, as a result of the four sinus surgeries, his sinuses are wide open and he has a "constant nasal drip that goes down into my chest." The combination of his low back and sinus problems causes his body to lose all energy and he has to sit down or lay down. AR 52. He can walk 200 feet, at most, without major complications. AR 53. He also has chronic bronchitis which is caused by his nasal drip and asthma. He testified that he has "[s]evere sinus headaches" every day which last until he takes one or two Motrin pills, 800 milligrams each. AR 53.

Plaintiff testified that he suffers from chronic viral pneumonia which he has had since he was exposed to asbestos in the Navy. AR 53-54. He gets pneumonia on a yearly basis. Id. His asthma also causes him to experience shortness of breath and makes it hard to breath. AR 54. Plaintiff testified that he was diagnosed with Epstein-Barr virus and hepatitis 6 in 2008 which also causes his chronic fatigue and sleep deprivation. AR 54. His doctors have informed him that there are no treatments for either condition. Id. The sleep deprivation affects his concentration. It causes him to be "very foggy" and that it is sometimes "difficult to put together sentences and talk." AR 54-55.

Plaintiff testified that his chronic fatigue, sleep deprivation and inability to do prolonged walking prevent him from working. AR 56. He estimated that he would be unable to work three to four days out of a five day work week, stating that "if I over exert myself in one given day, it could take me a week to two weeks to recover from that where, meaning that I would have enough energy to get out of bed and walk and just function a quality of life of daily living." AR 56. Plaintiff stated that he has a very minimal social life. He does not go out for entertainment and rarely goes out to dinner. He goes to the store with his wife. He indicated that he can go out provided "I've had enough rest that day. If I had just gotten up from taking a nap, then I could function for maybe two, three hours before I'd have to take a nap again." AR 57. He testified that he takes two Lortabs a day which make him drowsy. Id.

C. Vocational Expert's Testimony.

Vocational expert Jack Dymond testified that Plaintiff's past work as an executive director of the Boy Scouts of America and as a timeshare salesman are both classified as sedentary work with an SVP of 8 and Dictionary of Occupation Titles ("DOT") Nos. 195.117-010 and 163.167-018, respectively. His past work in auto sales was light work with an SVP of 6 and DOT No. 273.353-010. AR 58. The ALJ asked Mr. Dymond to assume a hypothetical younger individual between the ages of 45 and 49 with the same work and medical history as the Plaintiff, and whose impairments would limit him to light exertional work with occasional climbing of stairs and ramps: no climbing of ladders, ropes, or scaffolds; occasional balancing, stooping, kneeling, crouching, and crawling; no exposure to highly concentrated chemicals, dust or fumes, or fumes found in an industrial setting like a sawmill or chemical plant; no exposure to temperature extremes, such as found in the southwest; and no exposure to exposed heights or constantly moving dangerous machinery such as a printing press or thrashing machine. AR 59. The ALJ asked whether an individual with these limitations would be able to perform Plaintiff's past work. Mr. Dymond responded that such an individual would be able to perform Plaintiff's past work. The ALJ asked Mr. Dymond whether the hypothetical individual would be "competitively employable" if he were absent from work more than two days per month, either due to not going into work or departing from the workplace at will and not completing an eight hour day. Mr. Dymond stated that the person would not be employable because no more than one day of absence per month would be acceptable. AR 59-60.

D. Veteran's Administration Disability Finding

On July 20, 2010, the Veterans Administration (VA) granted Plaintiff a 100% disability rating effective July 30, 2009, finding that he was unable to work due to service connected disabilities. AR 201. The VA determined that five medical conditions were related to the Plaintiff's military service: chronic fatigue syndrome, viral pneumonia, chronic sinusitis, bronchial asthma, and hypertropic gastritis. (AR 200-201). These medical conditions were respectively assigned disability ratings of 60%, 0%, 50%, 60%, and 10% on a 0-100 scale. (AR 200-201). The VA found that Plaintiff's Epstein-Barr virus was not service connected. In its accompanying Rating Decision, dated July 14, 2010, the VA discussed each rated medical condition separately. In regard to Plaintiff's chronic fatigue syndrome, the VA stated:

Based on examination findings and a complete review of the evidence in your claim file the examiner diagnosed chronic fatigue syndrome. The examiner stated your chronic fatigue is most likely the result of your chronic and recurrent rhinosinusitis, asthma, and sleep apnea. This is also based on the knowledge that fatigue is one of the most common symptoms in those chronic problems.
During the examination your debilitating fatigue was recorded as constant. Your fatigue was noted to last 24 hours or longer following exercise. You stated you are almost totally restricted from routine daily activities due to chronic fatigue. Symptoms you reported were generalized weakness, migratory joint pains, sleep disturbance, inability to concentrate, forgetfulness, confusion and headaches.
The examiner stated that the criterion of the new onset of debilitating fatigue is severe enough to reduce or impair your average daily activitiy below 50 percent of your pre-illness activity level for a period of six months. It was also noted that your chronic fatigue syndrome meets at least six of the ten chronic fatigue syndrome diagnostic criteria.
Service connection for chronic fatigue syndrome has been established as related to the service-connected disability of bronchial asthma with symptoms of sleep apnea.
An evaluation of 60 percent is assigned from August 3, 2009. This effective date is based on the date we initially received your claim for this condition. An evaluation of 60 percent is assigned whenever there is debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, or confusion), or a combination of other signs and symptoms which are nearly constant and restrict routine daily activities to less than 50 percent of the pre-illness level; or signs and symptoms which wax and wane resulting in periods of incapacitation of at least six weeks duration per year.
The evidence is not suggestive that a higher evaluation is warranted. A higher evaluation of 100 percent is not warranted unless signs and symptoms are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care.

AR 207-208.

The VA Rating Decision also stated:

Based on the medical evidence from your private physicians and the evidence in your VA medical examinations, the evidence shows your service connected disabilities clearly prevent your ability to seek and maintain gainful employment. Your chronic fatigue has reduced your ability to perform many activities of daily living. Your respiratory conditions have been shown to require constant care by medical professionals. These conditions require frequent office visits for testing and treatment. Although treated with a CPAP, your sleep apnea causes daytime hypersomnolence which would affect your ability to work.

AR 209.

In regard to Plaintiff's bronchial asthma, the VA noted that Plaintiff used anti-inflammatories and a bronchodilator daily, and that he reported 3 asthma attacks a week. AR 212. A rating of 60% disability was found to be appropriate for Plaintiff's bronchial asthma due to "at least monthly visits to a physician for required care of exacerbations." AR 213. The VA evaluated Plaintiff's broncial asthma and sleep apnea together. AR 213. The sleep apnea warranted a 50% disabling rating because it was treated with a CPAP machine. AR 213. The rating of 60% was given for the combined evaluation of the asthma and the sleep apnea. AR 213. In regard to the Plaintiff's chronic sinusitis, the VA noted that Plaintiff reported incapacitating episodes that can last for 4-6 weeks. AR 214. Due to Plaintiff's reported headaches, fever, purulent drainage, and sinus pain, the VA concluded that this condition was 50% disabling, which was the maximum rating for those symptoms. AR 214. The VA examiner assigned a disability rating of 10% to Plaintiff's "epigastric distress, dysphagia, pyrosis, regurgitation, or substernal or arm or shoulder pain." AR 215.

The record also includes VA medical examiner Tri M. Truong's February 19, 2010 findings and conclusions based on his review of the medical records and examination of the Plaintiff. AR 696-739. Dr. Truong stated that Plaintiff's chronic fatigue syndrome had an onset date of June 2008. The fatigue did not wax and wane and it lasted 24 hours or longer. AR 722. Plaintiff's daily activities were almost totally restricted, and this level of restriction had lasted 12 months. Id. Plaintiff's symptoms were generalized weakness (constant), migratory joint pains (frequent), sleep disturbance (constant), inability to concentrate (constant), forgetfulness (constant), confusion (frequent) and headaches (constant). Id. Dr. Truong noted that the following problems were associated with the diagnosis of chronic fatigue syndrome: chronic sinusitis/bronchial asthma and sleep apnea. AR 723. He stated that the effect on the Plaintiff's occupational activities were decreased concentration, lack of stamina, weakness or fatigue and pain. He also stated that Plaintiff's chronic fatigue, sinusitis and asthma symptoms affected all of his activities of daily living. Id. Dr. Truong stated that at least 6 of the 10 chronic fatigue syndrome diagnostic criteria were met. AR 724. He concluded that Plaintiff's "chronic fatigue is most likely the result of his chronic and recurrent rhinosinusitis, asthma, and sleep apnea. This is also based on the knowledge that fatigue is one of the most common symptoms in those chronic problems." AR 728. He stated that the chronic fatigue could not be related to Plaintiff's "Epstein Barr antibody positively without resorting to mere speculation." Id.

E. Medical Records and Reports.

1. St. Rose Dominican Hospital. Plaintiff was hospitalized for chest pains at St. Rose Dominican Hospitals in July 2008. The "History of Present Illness" stated:

The patient is a 45-year-old gentleman with a history of chronic persistent asthma, chronic sinusitis with a history of multiple sinus surgeries, and chronic cough. The patient has been under treatment with Dr. Jim Christensen for years, has been sick this time since December, and has been tried on multiple different antibiotics and steroids. The last time he was on steroids was about two weeks ago. He has this chronic cough and decondition, and has poor exercise tolerance with shortness of breath. He came in with recent new-onset chest pain on the left side with left arm numbness, mostly at night, and is recurring every night, and so was told by his wife to come in. The patient denies any nausea or vomiting.... The patient does have sleep apnea, but according to him had multiple sleep studies done and does not meet the criteria for CPAP or BIPAP at this time. The patient has chronic fatigue, likely a steroid side effect, and is really concerned.

AR 590.

On July 12, 2008, an MRI of Plaintiff's lumbar spine was obtained which revealed a very mild broad base disk bulge at L4-L5, "but no significant compromise of the canal or foraminal is seen." AR 582-583. The MRI also revealed a small broad based disk protrusion at L5-S1, "which is mostly central indenting the thecal sac but causing no significant canal stenosis." AR 583.

2. Dr. James Christensen/Pulmonary Associates. Dr. James Christensen was Plaintiff's principal treating physician for his allergy/sinus problems. The record includes Dr. Christensen's office visit notes and treatment records from June 5, 2007 through October 25, 2010. AR 820-860, 1028-1040. Dr. Christensen's notes do not provide narrative detail regarding Plaintiff's complaints or examination findings. His handwritten notes are also illegible. See e.g AR 820-823.

Dr. Christensen wrote a January 21, 2010 letter addressed "To Whom It May Concern" in which he stated as follows:

Please be advised that I have seen Mr. Mandler since 12/16/97. He has a history of recurrent pneumonias in the Navy and had recurrent sinus infections since being in the civilian world. Part of these sinus infections started while he was in the Navy and he has had sinus surgery on four separate occasions before and after his discharge. He is now stuck with an empty nose syndrome and recurrent sinusitis, be it either bacterial and/or fungal. He has a chronic fatigue-like syndrome probably secondary to his chronic infections. I have evaluated his immune system looking for an obvious immune deficiency. There is nothing that is obvious.
His quality of life has suffered dramatically. He has chronic sinus infections on a regular basis. We have tried oral antibiotics and IV antibiotics. We are having some success with inhaled topical antibiotics. Unfortunately his sinuses are to the point that they don't support a natural mucociliary clearance system and he gets frequent infections from that. He has frequent pneumonias from his sinustises and spends his time more on antibiotics rather than off. He is also plagued by blinding headaches, nasal congestion, sore throat and a chronic cough.

AR 763.

On July 12, 2010, Dr. Christensen completed the licensed physician section of Plaintiff's application for a disabled person's motor vehicle license plate or placard. AR 1068. Dr. Christensen stated that Plaintiff cannot walk 200 feet without stopping to rest, that he was restricted by lung disease and was permanently disabled. Id.

3. Dr. Ash Sharma/Diagnostic Center of Medicine. Plaintiff began treating with Dr. Ash Sharma on November 11, 2008. AR 916. Dr. Sharma noted that Plaintiff had recently been diagnosed with obstructive sleep apnea and had received a prescription for CPAP, but had not yet started it. Id. Chronic sinusitis appeared to be the Plaintiff's main problem. Plaintiff had asthma "with patient reporting overall good control." AR 915. Dr. Sharma also assessed obstructive sleep apnea, hypersensitive heart disease, well controlled on Micardis, HCTZ, and GERD [Gastroesophageal reflux disease], well controlled on Protonix. Id. On December 4, 2008, Dr. Sharma noted that Plaintiff was now using the CPAP machine for his obstructive sleep apnea and he scheduled Plaintiff for follow-up in six months or as needed. AR 914. A handwritten note, dated December 16, 2008 stated that Plaintiff reported a chief complaint of being "very fatigued, had a episode on the 1st passed out after working out." AR 914. Dr. Sharma's office note for that date, however, made no reference to this complaint and stated that Plaintiff is "here for follow up, overall reports that he is doing well, taking all medications as prescribed." Dr. Sharma did not perform a physical examination, but did review results of laboratory studies. Dr. Sharma noted only a "mild exacerbation" of Plaintiff's sinusitis. AR 913. He noted that Plaintiff would be started on Levaquin 500 mg daily. He reviewed weight loss and dietary measures with Plaintiff and scheduled further lab work. Id.

On January 6, 2009, Dr. Sharma noted that "[t]he patient reports that for the most part he is doing well. He is here to review his most recent lab/diagnostics. He offers no complaints." AR 911. Dr. Sharma encouraged Plaintiff to work on weight loss and scheduled him for followup in three months. On June 15, 2009, Dr. Sharma again noted that Plaintiff "[o]verall reports doing well and offers no complaint." AR 909. Dr. Sharma again deferred a physical examination. He noted that Plaintiff's asthma was "stable with the patient using Combivent and Advair inhalers. He also noted that Plaintiff's allergic rhinosinusitis was stable with the patient using Allegra D and Flonase nasal spray. Plaintiff's steatohepatitis was improved with weight loss. AR 909. On July 22, 2009, Dr. Sharma noted that Plaintiff had had a sleep study on their initial visit and that Plaintiff was on CPAP. Plaintiff reported that "he is using it faithfully every night, but he continues to have issues with general fatigue and hypersomnolence throughout the day. The patient reports that he did have the appropriate CPAP titration and feels the sleep machine is working correctly." AR 906. Dr. Sharma again deferred a physical examination. He adjusted Plaintiff's medications and scheduled him for followup in three months or as needed. Id.

Plaintiff returned to Dr. Sharma on August 6, 2009. AR 904-903. The office visit note states:

This is a very pleasant 47-year-old gentleman who presents today still very frustrated regarding his chronic fatigue issues. The patient reports that he has severe weakness throughout his body, more extensively in the lower extremities. The patient again related that this all started in November 2007. The patient has been having increased and more frequent upper respiratory infections. He had been followed by Dr. Christensen, who is an immunologist/allergist. The patient reports that he was hospitalization (sic) and required inhaled tobramycin. The patient reports that in November 2007 he was treated once again for URI. The patient does provide a history of long standing asbestos exposure as he worked on a carrier in the military that was later noted to have severe asbestos exposure. The patient brings in a copy of his government records showing his service connected disability. The patient does note, however, that since that time he has had extreme fatigue that has only gotten progressively worse. At this time the patient and I went over the differential of causes of fatigue which includes, but are not limited to sleep apnea, insomnia, stress, anxiety, depression, hypothyroid, anemia, chronic liver inflammation, or disease, chronic renal inflammation or disease, B12 deformity, folic acid deficiency, other vitamin deficiencies, medications, chronic respiratory conditions such as COPD, emphysema, asthma, restrictive lung disease and also chronic allergies as well as medication used to treat chronic allergies.

AR 904.


Dr. Sharma stated that he told Plaintiff that they had done a fairly extensive work up. Plaintiff stated that Dr. Christensen had followed him extensively for his chronic fatigue condition. Plaintiff denied any anxiety, insomnia, depression or stress. AR 904. Under Assessment, Dr. Sharma stated:

CHRONIC FATIGUE, ETIOLOGY UNCLEAR WITH WORKUP AS NOTED. Would still consider asthma, allergies, chronic respiratory condition. In addition, I explained to the patient that he may have a diagnosis of chronic fatigue ...

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