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Richards v. Colvin

United States District Court, District of Colorado

December 2, 2014

JO AN RICHARDS, Plaintiff,
CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.



This action seeks review of the Commissioner’s decision denying the plaintiff’s claim for supplemental security income benefits under Title XVI and disability insurance benefits under Title II of the Social Security Act. The court has jurisdiction to review the Commissioner’s final decision under 42 U.S.C. § 1383(c)(3). The matter has been fully briefed, obviating the need for oral argument. The decision is AFFIRMED.


The plaintiff filed her application for benefits on July 11, 2009, stating that she had been disabled due to a lower back injury and bipolar disorder beginning October 31, 2008. Social Security Administrative Record [Doc. #10] (the “Record”), pp. 94-121.[1] Her application was denied. Id. at pp. 135-38. The plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). Id. at p. 139. The hearing was held on August 16, 2011. Id. at p. 21. At the hearing, the plaintiff amended her alleged onset date of disability from October 2008 to January 25, 2010. Id. On September 9, 2011, the ALJ issued a written decision finding that the plaintiff was not disabled as defined in the Social Security Act. Id. at pp. 21-31. The Appeals Council denied the plaintiff’s request for review. Id. at p. 1. The ALJ’s decision is final for purposes of this court’s review. 20 C.F.R. § 404.981.[2]

The plaintiff was 52 years old at the time of the hearing. Id. at p. 41. In October 2004, she had an MRI of her lumbar spine after suffering a lifting injury at work. Id. at p. 331. The MRI revealed a focal far left-sided disc protrusion of the L3-4 at the level of the foramen with associated annular tear; a focal lateral right-sided protrusion of the L4-5 at the level of the foramen with annular tear and minor foraminal encroachment; and a minimal disc bulge at L5-S1. Id. at pp. 131-32.

In July 2005, a workers’ compensation physician, John Nordin, M.D., found that the plaintiff could lift a maximum weight of 10 pounds, carry five pounds, walk for three hours per day, and stand for four hours per day. Id. at p. 328.

On January 27, 2006, the plaintiff saw Physical Therapist Patrick Coughlan for an evaluation of her potential to return to work. Id. at pp. 406-21. The plaintiff reported that she felt improvement with her pain after work conditioning and that she would like to continue exercising to improve her strength and lose weight. Id. at p. 409. After extensive testing, Mr. Coughlan found that the plaintiff’s work tolerance was consistent with light work. Id. at p. 408.

On June 15, 2006, the plaintiff was diagnosed with lumbar sprain and strain by Dr. Hemler at Sports and Orthopedic Rehabilitation. He referred her to the Denver West Surgery Center for a sacroiliac joint injection and facet block. Id. at pp. 326-27.

On May 12, 2008, the plaintiff was seen by Physician’s Assistant Darcy Connelly for “bipolar illness.” Id. at p. 321. PA Connelly documented that this was the plaintiff’s initial visit; the plaintiff’s severity level was 2; the problem was worsening; the plaintiff was working 20 hours a week; she didn’t like her job; and she believed her medication was not working any more. The plaintiff was alert, cooperative, and in no apparent distress. Her listed problems/conditions included opioid dependence, depressive disorder, and obesity. PA Connelly documented that the plaintiff had used lithium in the past with adverse drug reactions; she was without insurance; and she could not afford other mood stabilizers. PA Connelly increased the plaintiff’s Symbyax to the maximum dosage. Id.

On July 14, 2008, the plaintiff was seen by PA Connelly for a “bipolar [follow up]” visit. Id. at p. 319. PA Connelly documented that the severity level was mild; the problem was improving; the plaintiff was off all narcotics after methadone treatment; her mood seemed better; the plaintiff wanted to stay on Symbyax; and the plaintiff thought that the Symbyax was working better now that she was off narcotics. PA Connelly found that the plaintiff was alert, cooperative, in no apparent distress, had normal affect, and was cooperative. Her listed problems/conditions included opioid dependence, depressive disorder, and obesity. Id.

On June 10, 2009, the plaintiff visited the Arvada Clinic as a new patient complaining of right knee pain. Id. at p. 370. She was seen by Arti Saproo, M.D. Id. Dr. Saproo noted that the plaintiff was alert and cooperative, had a normal mood and affect, and a normal attention span and concentration. Id. at p. 372. Dr. Sparoo listed chronic back pain as one of the plaintiff’s problems. The doctor’s recommended treatment included diet, exercise, cold compresses, and Naproxen twice a day. Id.

On June 21, 2009, the plaintiff was seen at the University of Colorado Hospital Emergency Room for right-sided back pain. Id. at p. 323. She arrived with a steady gait, walked normally, appeared comfortable, and did not appear to be in acute distress. She had tenderness in the right mid-back area and pain with straight leg raise. Id. at p. 341. Her CT scan and blood tests were normal. She was diagnosed with a strained muscle. She was treated with oxycodone and diazepam and experienced “some improvement” with that treatment. She was told to return to the Emergency Room if her pain worsened and to follow up with her primary care physician within three to five days. Id. at pp. 323-24.

On September 15, 2009, the plaintiff saw Jonathan Lipson, Ph.D., for a consultative psychiatric evaluation for Social Security Disability determination. Id. at pp. 352-358. The plaintiff claimed that she had bipolar disorder that was diagnosed in 2005, and a lower back injury that occurred in 2004. Id. at p. 352. She claimed that she did not answer the telephone, did not visit with her friends or parents, and no longer sang or played the guitar; however, she visited with her grandchildren and “acknowledged that she love[d] to visit with them.” Id. at p. 354. The plaintiff lived with her partner and her dogs and was able to clean the garage (where the dogs stay), dust, and load and unload the dishwasher. Id. at pp. 353-54. She was currently employed as an auditor for King Soopers 12 hours per week but had been paid for 36 hours the previous week because she had traveled for work. Id. at p. 353.

Dr. Lipson found that the plaintiff was cooperative, though irritable during the examination; her organization of thought was logical; her eye contact was appropriate; and her mood was variably pleasant and irritable. Id. at pp. 354-55. Dr. Lipson also found that the plaintiff’s immediate and recent memory were adequate, her remote memory and attention were intact, her concentration was fair, her thought processes were concrete, and her judgment and reasoning were fair. Id. at pp. 355-56.

Dr. Lipson documented that the plaintiff’s ability to obtain productive employment without assistance is moderately impaired; her ability to perform activities with a schedule, maintain attendance, and be punctual is moderately impaired; her ability to maintain employment, adapt to the work environment, tolerate the stressors of the work environment, and complete a normal work day is markedly impaired; and her ability to manage money or benefits is moderately impaired. Id. at p. 357.

Dr. Lipson did not diagnose the plaintiff with bipolar disorder; instead, he diagnosed chronic posttraumatic stress disorder and stated that the plaintiff “presented with history and symptoms consistent with posttraumatic stress subsequent to childhood sexual abuse.” Id. at p. 356. He also stated that she “reported chronic back and leg pain, though the severity of such report may have been exaggerated, ” id., and that she “presented as a generally reliable historian, but she appeared to exaggerate her pain report.” He documented that the plaintiff did not exhibit any pain behavior during the hour-long evaluation. Id. at p. 354.

On November 20, 2009, the plaintiff saw Dr. Charlene Borja at Disability Exam Services for a consultative exam. Id. at p. 360. The plaintiff reported that she had back pain since 2004 that was exacerbated by bending and vacuuming and alleviated by heat, ice, rest, and no heavy lifting. She further reported that she was diagnosed with bipolar disorder in 2006. Id.

The plaintiff told Dr. Borja that she is able to drive, get in and out of bed, dress herself, bathe herself, and cook and clean for herself. She stated that a typical day is spent doing her part-time job, watching television, reading, and playing guitar. Dr. Borja found the plaintiff to be appropriate during the examination. Id. at p. 361. He stated that she was able to walk in and out of the examination room and get on and off the examination table with mild discernable discomfort. Id. at pp. 361-62. Her gait was not ataxic or antalgic, and she was able to stand and walk on her heels and toes. Id. at p. 363. He noted that her diagnosis of bipolar/anger was questionable. He found that she could stand or walk four hours during a normal eight hour workday; she could sit for eight hours during a normal eight hour workday; she could lift and carry up to 10 pounds; and that workplace environmental limitations include heights and stairs. Id. at p. 364.

Also on November 20, 2009, Ellen Ryan, M.D., reviewed the plaintiff’s medical records and determined that the plaintiff could perform low level semi-skilled work if her interaction with supervisors and co-workers was not frequent or prolonged and she had less interaction with the public. Id. at pp. 103-105.

On August 30, 2010, the plaintiff was seen for a wellness exam and right arm pain by Physician’s Assistant Ruth Knight at the Arvada Clinic. Id. at pp. 375-82. She was found to be alert and cooperative with a normal mood and affect and a normal attention span and concentration. Id. at ...

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