United States District Court, D. Colorado
R. BROOKE JACKSON, District Judge.
This matter is before the Court on review of the Commissioner's decision denying plaintiff Kenneth Kaighn's application for disability insurance benefits pursuant to Title II of the Social Security Act. Jurisdiction is proper under 42 U.S.C. § 405(g). This dispute became ripe for decision by this Court on July 15, 2013 upon plaintiff's filing of a reply brief. The Court apologizes to the parties and counsel for its delay in addressing the case.
Standard of Review
This appeal is based upon the administrative record and briefs submitted by the parties. In reviewing a final decision by the Commissioner, the role of the District Court is to examine the record and determine whether it "contains substantial evidence to support the [Commissioner's] decision and whether the [Commissioner] applied the correct legal standards." Rickets v. Apfel, 16 F.Supp.2d 1280, 1287 (D. Colo. 1998). A decision cannot be based on substantial evidence if "it is overwhelmed by other evidence in the record...." Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988). Substantial evidence requires "more than a scintilla, but less than a preponderance." Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Evidence is not substantial if it "constitutes mere conclusion." Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992).
Mr. Kaighn first applied for disability benefits on October 3, 2011. R. 18. He alleges he first became disabled on August 1, 2010 due to a traumatic brain injury (TBI), post-traumatic stress disorder (PTSD), degenerative disc disease, carpal and cubital tunnel syndromes in both arms, sciatica, cervical strain, and a bulging disc. The Social Security Administration initially denied his application for disability on November 25, 2011. Id. Mr. Kaighn then requested a hearing before an administrative law judge (ALJ), and the ALJ held a hearing via video conference on April 24, 2012. On May 14, 2012, ALJ Paul R. Armstrong issued an opinion denying benefits. Mr. Kaighn then appealed the ALJ's decision to the Appeals Council. The Appeals Council denied Mr. Kaighn's request for review on September 26, 2012. R. 1. Thereafter he filed a timely appeal with this Court.
Mr. Kaighn is a former Marine and Army National Guardsman. After service in Somalia, Iraq, and Afghanistan, Mr. Kaighn moved with his family to Colorado. He has a high school education, and in addition to his duties in the military, he has worked for the U.S. Forest Service as a heavy equipment operator. Mr. Kaighn left his job with the Forest Service after his medical issues made it difficult for him to stay on-task and caused problems with coworkers. Mr. Kaighn has been treated by an interdisciplinary team at the VA Hospital in Grand Junction for several years now. R. 332-348, 360, 404-502, 509-658. Because the record contains voluminous medical opinions and because I discuss them in detail later in this order, I offer only a brief summary of the facts at this stage.
Physical and Mental Impairments
Mr. Kaighn has been diagnosed with post-traumatic stress disorder ("PTSD"), Meniere's disease,  traumatic brain injury ("TBI"), degenerative disc disease, and peripheral ulnar neuropathy. Many of these problems appear to be the result of explosions and other trauma sustained while in combat overseas. Mr. Kaighn's impairments, in combination, are considered 100 percent disabling according to the Department of Veterans Affairs. R. 211.
Treatment notes from Dr. Robert Scribner-who managed Mr. Kaighn's psychiatric medications-indicate that Mr. Kaighn was suffering from severe anhedonia,  isolation, and job stress. R. 664. Dr. Scribner and Mr. Kaighn discussed the possibility of medical retirement. R. 461.
In 2012, a treating psychologist, Dr. William Steele, indicated that Mr. Kaighn suffered from marked limitations in his ability to sustain concentration and to work with others. R. 705-07. That same year, Dr. Robert Graves, an examining physician, examined Mr. Kaighn, noting that his back and neck problems would cause "limited standing, sitting, lifting, [and] bending [that] would affect work." R. 602-03. Dr. Graves also concluded that Mr. Kaighn had occasional neurobehavioral problems that might impact work and social interactions but probably would not preclude them entirely. R. 558-61. He also noted that Mr. Kaighn's TBI might cause problems with focus, even in a sedentary work environment. R. 555. These observed cognitive limitations were supported by a Compensation and Pension Examination Report filled out by Dr. Julie Lindsay' also in 2012. R. 528-39.
Mr. Kaighn himself has testified that his PTSD and TBI cause frequent headaches and make it difficult to concentrate. R. 50-60. He also claims that his back and neck issues make it hard for him to remain in one position for very long and contribute to his problems with concentration. Id.
The Social Security Administration uses a five step process to determine whether a claimant qualifies for disability insurance benefits. At step one, the ALJ determined that Mr. Kaighn had not engaged in substantial gainful activity since August 1, 2010 (his alleged onset date). At step two, the ALJ found that Mr. Kaighn suffered from the following severe impairments: "traumatic brain injury; post-traumatic stress disorder with anxiety and depression; Meniere's disease; degenerative disc disease of the cervical and lumbar spine; and peripheral ulnar neuropathy." R. 21. The ALJ also noted that Mr. Kaighn was recently diagnosed with diabetes, but found that condition to be less than severe because it was not causing any functional limitations. Id. At step three, the ALJ determined that none of these impairments- alone or in combination-met or medically equaled one of the listed impairments.
At step four, the ALJ noted that Mr. Kaighn is unable to perform any of his past relevant work, but the ALJ nonetheless decided that Mr. Kaighn had a residual functional capacity ("RFC") to
perform sedentary work as defined in 20 CFR 404.1567(a) with the following restrictions: simple, unskilled work only; no work at unprotected heights, around dangerous moving machinery, open flames or bodies of water; no more than superficial contact with supervisors, co-employees and the general public; and no repetitive manipulative work or forceful gripping bilaterally. Frequent manipulative work and forceful gripping is permissible.
In reaching this conclusion, the ALJ decided that "claimant was not credible" in his description of the intensity, persistence, and limiting effects of his alleged symptoms. R. 24. According to the ALJ, Mr. Kaighn's testimony was inconsistent with the objective medical evidence in the record as well as Mr. Kaighn's prior statements. R. 24-33.
Regarding his TBI, the ALJ noted that while Mr. Kaighn alleged that he is unable to perform skilled sedentary work, he also told his physicians that he wished to return to college for a degree in information technology. R. 427, 472. The ALJ further noted that an "extensive August 2009 neuropsychological evaluation [by Dr. Bowen] documented neurocognitive disorder secondary to mild TBI, as well as PTSD and anxiety disorder." R. 25 (citing R. 349-59). Dr. Bowen concluded that Mr. Kaighn suffered from mild impairments in memory, attention, concentration, executive functions, and social functions. R. 358. While these impairments certainly could interfere with workplace or social interaction, they did not "preclude" them. Id.
Longitudinal treatment records confirmed Mr. Kaighn's PTSD diagnosis but also illustrated that treatment was helping, and that his symptoms were partially controlled. R. 464. The VA assigned Mr. Kaighn an impairment rating of 70 percent for his PTSD symptoms due to a myriad of symptoms that interfered with work, family, and social relations:
suicidal ideation; obsessional rituals which interfere with routine activities; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty adapting to stressful circumstances (including work ...