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Daniels v. Colvin

United States District Court, D. Colorado

December 8, 2014

SAMANTHA J. DANIELS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

For Samantha Daniels, Plaintiff: Joseph Anthony Whitcomb, Rocky Mountain Disability Law Group, Denver, CO.

For Carolyn W. Colvin, Acting Commissioner of the Social Security Administration, Defendant: Christina J. Valerio, Social Security Administration-Denver, Office of the General Counsel, Region VIII, Denver, CO.

ORDER

Boyd N. Boland, United States Magistrate Judge.

The plaintiff seeks review of the Commissioner's decision denying her claim for supplemental security income benefits under Title XVI 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.

I. FACTUAL AND PROCEDURAL BACKGROUND

On April 16, 2007, the plaintiff filed an application for child's insurance benefits based on disability and an application for supplemental security income benefits. In both applications, she alleged disability beginning November 5, 2005. The applications were denied on July 25, 2007. The plaintiff requested a hearing by an Administrative Law Judge (" ALJ"), which was held on September 11, 2008. In a decision dated October 8, 2008, the ALJ found that the plaintiff had the residual functional capacity to perform sedentary work with no more than occasional bending and stooping; the plaintiff was capable of making a successful adjustment to other work that exists in significant numbers in the national economy; and, therefore, she was not disabled. The Appeals Council denied the plaintiff's request for review. Social Security Administrative Record [Doc. #9] (the " Record"), p. 17.[1]

On April 19, 2011, the plaintiff filed an application for supplemental security income benefits which alleged disability based on a back injury, whiplash, and insomnia beginning April 11, 2005. Id. at pp. 137-43. The application was denied on June 7, 2011. Id. at p. 80. The plaintiff requested a hearing which was held on June 6, 2012. Id. at pp. 86-90; 26-52. The plaintiff was 24 years old at the time of the hearing. Id. at p. 151. The ALJ issued a written decision on June 13, 2012, finding that the plaintiff is not disabled. Id. at pp. 14-25. The plaintiff filed a request for review by the Appeals Council. Id. at p. 11. The Appeals Council denied the plaintiff's request. Id. at pp. 1-4. The ALJ's decision is final for purposes of this court's review. 20 C.F.R. § 404.981.

On May 18, 2010, the plaintiff saw Dr. Jack Rook, M.D., for a follow-up evaluation at Intermountain Rehabilitation Associates, Inc. She was in no apparent distress; her gait was normal; her balance was steady; and she did not exhibit any pain behaviors. Dr. Rook stated that " she continues to have compelling low back discomfort." He documented that the plaintiff had tried immediate release morphine but it was too short-acting for her. She did better on MS Contin and wanted to restart that medication. She continued to have difficulty sleeping despite taking Klonopin. Dr. Rook noted that " [s]he continues with an independent exercise program." He prescribed MS Contin for pain, Ambien for sleep, and Soma as a muscle relaxant. He recommended follow-up in three months and continuation of the independent exercise program. Id. at p. 214.

On August 18, 2010, the plaintiff saw Dr. Rook for a follow-up evaluation. Dr. Rook documented that she continued " to struggle with low back pain." He noted that her sleep was slightly improved with Ambien, and she had " a lot of muscle spasms and in the past she has tried Valium at night" which helped her to sleep in combination with the Ambien. Dr. Rook discontinued the Klonopin and started the plaintiff on Valium, 10 mg. at night. He noted that the plaintiff has had " multiple injections which were not helpful." Based on her MRI, he found that " she does not appear to have surgical pathology." He renewed the MS Contin and Ambien prescriptions. He found that she was in no apparent distress; she had a normal gate; her balance was steady; and she did not exhibit any pain behaviors. He stated he would continue to see her at three-month intervals, and if she had any problems before her next visit, she should contact him. Id. at p. 213.

The plaintiff saw Dr. Rook again on November 17, 2010. He noted that she continued to " struggle with severe low back pain" which had been increasing with the colder weather. He recommended that she see a chiropractor for a short course of manipulation treatment. He also noted that she was having difficulty sleeping because of increasing back pain. He recommended that she take Ibuprofen prior to her bed time, and he renewed her MS Contin, Ambien, and Valium. He documented that she was in no distress, did not exhibit pain behaviors, had a normal gate, and had steady balance. He stated he would continue to see her at three-month intervals, and if she had any problems before the next visit, she should contact him. Id. at p. 212.

At the same visit, Dr. Rook completed a " Physical Restrictions Form." He indicated that the plaintiff could sit, stand, and walk for one hour at a time; sit for three to four hours per day; stand and walk for one hour per day; occasionally kneel, climb stairs, reach above her shoulders, and lift, carry, push, or pull 10 pounds; occasionally drive; repeatedly use her upper arms; and never bend, twist, crouch, crawl, climb ladders, or repeatedly use her lower arms. He further indicated that the plaintiff " must have the freedom to change positions frequently." Dr. Rook indicated that his recommendations were permanent. Id. at p. 208.

On February 17, 2010, the plaintiff saw Dr. Rook for her three-month follow-up. She continued to complain about severe low back pain and numbness in both legs. Her pain was worse during the cold weather months. Dr. Rook stated that she had not had any " further treatment" since he last saw her. The Ibuprofen did not help her pain. Dr. Rook renewed the other medications. He stated that " [i]t might be worthwhile proceeding with somatosensory evoked potentials to determine if there is a neurological abnormality accounting for the patient's complaints of numbness in both legs. A prior electrical study was unrevealing for acute nerve injury. However, the typical electrodiagnostic study does not assess for sensory abnormalities." He documented that she was in no distress, did not exhibit pain behaviors, had a normal gate, and had steady balance. Id. at p. 211.

On June 7, 2011, state agency physician Alan Ketelhohn, M.D., noted that the plaintiff " does have documented back pain, however she reports that she is able to lift 10 lbs, and walk 1/4 mile, drive and takes care of rescued horses." Id. at p. 63. Based on Dr. Ketelhohn's review of the plaintiff's records, he determined that the plaintiff could frequently lift and/or carry 10 pounds; stand and/or walk (with normal breaks) a total of two hours; sit (with normal breaks) for a total of six hours in an eight hour workday; frequently climb ramps/stairs; occasionally climb ladders, ropes, or scaffolds; occasionally stoop; occasionally kneel; and frequently crouch. Id. at pp. 63-65.

On October 14, 2011, Dr. Rook completed a " Physical Capacity Evaluation" form. He indicated that the plaintiff could sit for six out of eight hours; stand and/or walk for two out of eight hours; lift and carry 10 pounds on an occasional basis; use her hands frequently; would have to miss more than two days per month because of pain and/or fatigue; and would need to lie down periodically throughout the day due to pain and/or fatigue. He further indicated that those limitations had been present since August 1, 2008. Id. at p. 221.

On April 17, 2012, the plaintiff presented to Family Medical Clinics with a chief complaint of " bulging discs in back." Id. at pp. 222-23. She reported that she suffered a work injury after lifting in 2005; " improved with horseback"; bulging discs after a motor vehicle accident in 2008; and numbness to the legs. The care provider[2] documented that the plaintiff did not have joint pain, muscle pain, numbness, or weakness; had normal musculoskeletal strength, tone, and gait; did not have any bony point tenderness or spasms; and had a normal straight leg raise test. The care provider documented that the plaintiff could sit for four hours; stand and walk for one hour; sit for 30 minutes at a time; and stand and walk for five to ten minutes at a time. The plaintiff was to follow-up in one week and bring her past medical records and scans with her. Id. at p. 223.

The plaintiff returned to Family Medical Clinics on May 1, 2012. The care provider documented that the plaintiff's last MRI showed no abnormalities; Dr. Rook diagnosed the plaintiff with facet arthropathy; and the plaintiff " has limitations listed from 2008." The plaintiff's back was not examined. The care provider noted that another MRI was needed and started the plaintiff on Baclofen and Gabapentin. Id. at p. 224.

The plaintiff was seen at the Family Medical Clinics on May 31, 2012, for the results of her MRI. She was not examined. The care provider stated that the MRI showed " mild bilateral facet hypertrophy" but was otherwise negative. The plaintiff was referred to Memorial Pain Institute. The Baclofen was renewed. The care provider documented that the Neurontin was not working and prescribed Elavil. Id. at p. 228.[3]

At the ALJ hearing on June 6, 2012, the plaintiff testified that she had worked for a short time as a secretary at a horse stable. She was able to perform the duties that were required of her, but she was terminated because she wanted to go on the tours with the horses, and her employer did not think it was safe given her prior injury. Id. at p. 30. Her job as a secretary included paperwork, phone calls, taking pictures of the trail rides, and cleaning horse manure from the street and the trail. She was able to do the majority of the job but could not lift the manure carts because they weighed between 50 and 100 pounds. Id. at p. 31. She did not often get a ...


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