United States District Court, D. Colorado
KIMBERLY S. PLOUGHE, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
R. BROOKE JACKSON, District Judge.
This matter is before the Court on review of the Commissioner's decision denying plaintiff Kimberly Ploughe'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).
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). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010) (citations omitted). Evidence is not substantial if it "constitutes mere conclusion." Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992).
The Court "may neither reweigh the evidence nor substitute [its] judgment for that of the agency." Harper v. Colvin, 528 F.Appx. 887, 890 (10th Cir. 2013) (citations omitted). Thus, although some evidence could support contrary findings, the Court "may not displace the agency's choice between two fairly conflicting views, " even if the Court might "have made a different choice had the matter been before it de novo." Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007). However, the Court must "meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met." Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (citations omitted).
Upon review, the district court "shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 45 U.S.C. § 405(g).
Ms. Ploughe applied for disability insurance benefits on or around March 17, 2011. She claimed inability to work since her alleged onset date of January 10, 2007 due to chronic back pain and mental impairments, chronic low back pain requiring narcotic pain medication, anxiety disorder, depression, and memory problems. R. 227. Ms. Ploughe's date last insured (DLI) was December 31, 2009. The Commissioner denied Ms. Ploughe's application on June 2, 2011. Ms. Ploughe then requested a hearing before an administrative law judge (ALJ), and the ALJ conducted a video hearing on August 14, 2012. On August 22, 2012 ALJ Christel Ambuehl issued an opinion denying benefits. The Appeals Council denied Ms. Ploughe's request for review on November 25, 2013. Thereafter, Ms. Ploughe filed a timely appeal with this Court.
The relevant time period for purposes of determining whether Ms. Ploughe is entitled to Social Security Disability benefits is from June 10, 2007 through December 31, 2009. However, preceding events and post-dated medical records may prove relevant if they relate to impairments suffered during this time period.
Ms. Ploughe was involved in a motor vehicle accident in the early 1990s and underwent two surgeries, lumbar laminectomies with fusion, to her lower back in or around 1994. See R. 333, 413. These surgeries did not alleviate her pain, at least not fully, and an MRI from February 2010 shows that the anterior fusion at L3-4 was not clearly united, with residual irregular material superiorly separating the fusion bone from the L3 vertebral body. R. 775. The MRI also showed small disc bulges with mild dural sac indentation. Id.
In 2004 Ms. Ploughe became a patient at the Mapleton Pain Clinic, where she was treated by Philip Cambe, M.D. (a pain management specialist), Bonnie Wilensky, NP (a nurse practitioner in pain management), and Patrick Vann, Ed.D., a psychologist. During the relevant time period, Ms. Ploughe was treated with a number of medications to alleviate her pain and her anxiety. Ms. Ploughe underwent monthly follow-ups concerning her pain, but she only saw Dr. Vann for psychological treatment a handful of times during this time period. However, she saw Dr. Vann frequently both before and after the relevant time period. The gap in treatment is due to Ms. Ploughe's inability to afford care arising from a lack of insurance coverage. See R. 88.
In 2008 Ms. Ploughe was referred to a neurologist, Raj Kakkar, MD, by her primary care physician. Dr. Kakkar performed several EEG studies. Two occurred before the DLI, on October 15, 2008 and April 29, 2009. R. 467-70. Three others took place after the DLI passed, on April 29, 2010, April 29, 2011, and August 17, 2011. R. 471-72; 844; 846-47. The three EEGs post-dating Ms. Ploughe's DLI were identified as abnormal, with the last one markedly abnormal. However, the two predating the DLI were not described as abnormal. The October 15, 2008 EEG left the following impressions: Ms. Ploughe exhibited asymmetrical dysrhythmia, sharp in nature, left frontotemporal region with evidence of sharp waves; the findings are clearly asymmetrical and localized to the left. R. 467-68. And the April 29, 2009 EEG notes: Ms. Ploughe continues to exhibit some sharp contouring of the frontotemporal activity, slightly asymmetrical on the left side, however, except for occasional isolated sharp wave, there is no evidence of any other distinct epileptiform discharges. R. 469-70. For about a year during the relevant time period Ms. Ploughe complained of memory problems, such as forgetfulness. See R. 582-83. In response, Dr. Kakkar placed Ms. Ploughe on 200mg of Lamictal (100 mg twice per day) in November 2008, see R. 582, which was reported as having had a significant beneficial impact on Ms. Ploughe's functioning by December 2009. See R. 577. Ms. Ploughe reports that the Lamictal was then titrated down to 100 mg, at which point the beneficial effects were lost, and raised again to 150 mg.
During this time period Ms. Ploughe began developing problems with balance and vertigo, resulting in the need to use a cane when walking. She was also diagnosed with iron deficient anemia, for which she required nine intravenous iron infusions over a period of seven months beginning on or around October 19, 2009. See R. 557-58. Ms. Ploughe's hematologist, David Faragher, MD, opined that Ms. Ploughe would probably need maintenance iron infusions on an intermittent basis going forward. Id. However, Ms. Ploughe's hematocrit level has been above 30% since at least October 2009, and has continued to steadily rise through the years. See R. 549; see also R. 527; 538-39; 542-43; 547-48. In May 2010 her hematocrit level was at 43.4%. R. 496, 536.
In April 2011 Ms. Ploughe filled out a Function Report describing the limitations in her daily activities that she suffers due to her impairments. See R. 248-54. In the report Ms. Ploughe describes leading a very limited lifestyle, including an inability to stand long enough to cook; an inability to do house or yard work because of limitations bending, stooping, lifting, or standing long enough; an ability to drive only short distances; short-term memory loss; and an ability to walk for only five minutes at a time. She also indicates that she does not take care of anyone else, such as a spouse, children, grandchildren, or others. However, the severity of these subjective reports is not supported by either Ms. Ploughe's own testimony in the hearing or in the treatment notes, at least not for the relevant time period.
During the hearing - which took place over a year later in August 2012 - Ms. Ploughe states that she had been limited to driving short distances for only the past year, that during the relevant time period she drove herself. R. 56-57. Though Ms. Ploughe reports chronic pain preventing her from lifting, bending, and standing for long periods of time, R. 61, she also describes taking care of her newborn grandchild full-time while her daughter was working, caring for him "like a normal mother, " R. 79. Once the baby turned one Ms. Plough began watching him 20 hours a week, as her daughter began working part-time. R. 80. Ms. Ploughe describes her typical day during the relevant time period as "picking up after the kids, baking, cooking something on the top of the stove or putting something in the crockpot." R. 77. She also stated that she folded the laundry, vacuumed about once a week, and used a broom to sweep crumbs from under the table. R. 78.
According to Ms. Ploughe's treatment notes and testimony, she was also engaging in other significant life activities. With respect to travel, Ms. Ploughe reported that she was planning a road trip in October 2007, R. 415; she was planning a trip to California in May 2009, R. 446; she took a five-week trip to Wisconsin to see family in late 2009, R. 81; 438; and she took a trip to Breckenridge in or around October 2009, R. 440. While Ms. Ploughe has described pain and discomfort from undertaking such long trips, it is evident that Ms. Ploughe was still able to travel. In fact, she reported taking an RV trip through the Northeast in 2011. R. 80. Furthermore, in July 2009 Ms. Ploughe reported engaging in increased activities at home, such as gardening. R. 444. In May 2008 Ms. Ploughe reported frequently spending time with all six of her grandchildren, which made her ...