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Paulek v. Colvin

United States District Court, D. Colorado

November 12, 2015

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



Plaintiff, Japheth A. Paulek, appeals from the Social Security Administration (“SSA”) Commissioner’s final decision denying his application for disability insurance benefits, filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-433, and his application for supplemental security income, filed pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383c. Jurisdiction is proper under 42 U.S.C. § 405(g). Oral argument would not materially assist me in the determination of this appeal. After consideration of the parties’ briefs, as well as the administrative record, I AFFIRM the Commissioner’s final order.


Plaintiff seeks judicial review of the Commissioner’s decision denying his applications for disability insurance benefits and for supplemental security income filed on January 12, 2011. [Administrative Record (“AR”) 129, 165, 801] After the applications were initially denied in May of 2011 [AR 72], an Administrative Law Judge (“ALJ”) conducted an evidentiary hearing on November 15, 2012, and issued a written ruling on November 29, 2012. [AR 830, 23] The ALJ denied Plaintiff’s applications on the basis that he was not disabled because he was capable of performing past relevant work (Step Four). [AR 23-36] The SSA Appeals Council subsequently denied Plaintiff’s administrative request for review of the ALJ’s determination, making the SSA Commissioner’s denial final for the purpose of judicial review. [AR 12] Plaintiff timely filed his complaint with this court seeking review of the Commissioner’s decision.


Plaintiff was born on November 25, 1977, was thirty years old at the time of his alleged disability onset date (of July 1, 2008), had attended special education classes in elementary school and dropped out of school in eighth grade. [AR 193, 872] His past relevant work history was as a cashier, gas station clerk, painter and driver. [AR 215, 875-77] In his applications, Plaintiff alleged he became disabled in July of 2008, due to Type 1 diabetes, back injury, depression, arthritis, fibromyalgia, and neuropathy in his legs. [AR 122] Plaintiff’s last date of insured was December 31, 2009. [AR 122]

Plaintiff developed Type 1 diabetes mellitus when he was 14 years old. [AR 529, 750] The earliest medical records reveal that Plaintiff sought general health care from Mark A. Perea, M.D., who he saw two or three times a year. [AR 661-87] On December 10, 2005, Dr. Perea assessed Plaintiff’s active problems as: Type 1 DM, Neuropathy, HTN, Gastropatesis and GERD. [AR 662] In July of 2007, Plaintiff complained to Dr. Perea of bilateral lumbar pain, but a subsequent MRI revealed very mild degenerative changes. [AR 670, 672, 682] Upon continued complaints, Dr. Perea ordered physical therapy on January 31, 2008. [AR 676, 266, 271] Plaintiff underwent hernia repair surgery in October of 2008. [AR 678, 272-87]

During this time, Plaintiff returned to the Barbara Davis Center for Diabetes Care, in April of 2008, in order to managed his diabetes. [AR 508-52, 579-606] The initial records, dated April 7, 2008, indicates a diagnosis of diabetes mellitus, diabetic nephrology (albuminuria) or kidney disease, depression/anxiety and GERD/gastroperesis. [AR 541] A systems review indicated mild peripheral sensory neuropathy and anxiety/depression. [AR 536] It is clear from the Barbara Davis Center records - from April 2008 through May 2012 - that Plaintiff’s attempts to manage his blood glucose levels were unsuccessful, and his diabetes was not well controlled. [AR 508-52, 579-606, 633-60] Starting in June of 2009, Plaintiff reported regularly to the Emergency Department complaining of bilateral leg pain, vomiting, headaches and low blood sugar issues. [AR 288, 689-96, 298]

Commencing on October 22, 2009, Plaintiff began seeing Dr. Hai Bui and Kathryn Bouchard, APN at Lakewood Medical Center almost monthly through February 2011. [AR 443-504] At his initial visit, on October 22, 2009, Dr. Bui noted Plaintiff’s uncontrolled diabetes and neuropathy of the lower extremeties. [AR 504] Ms. Bouchard subsequently ordered physical therapy for Plaintiff’s lower back pain - following lumbar spine MRI results dated January 21, 2010 which showed equivocal facet sclerosis at L5-S1 [AR 397, 708-10, 494, 497] On February 25, 2010 Ms. Bouchard referred him for a steroid injection. [AR 489] During this time, Plaintiff continued to report to the Emergency Department for treatment for right foot pain, headaches, vomiting and hypoglycimia. [AR 319-38, 697, 711-16, 406, 717-22, 381, 368, 416, 425, 607]

On March 11, 2010, Plaintiff underwent another MRI which showed “disc dessication at T12-L1 with mild disc space narrowing at T11-T12 and T12-L1. Schnori’s node at superior endplate of T12. Mild focal degenerative marrow signal at the superior endplate of L1.” [AR 412] It also revealed “mild disc dessication throughout the cervical spine with mild disc bulges but not significant central canal stenosis.” [AR 412] Plaintiff was then seen by Phillip L. Engen, MD at the Clear Creek Surgery Center. [AR 351, 724-27] Dr. Engen’s impressions were: L5-S1 facet arthropathy, right sacroiliac joint disfunction, probable fibromyalgia, probable sleep apnea, probable periodic limb movement disorder, diabetes, diabetic gastoparesis and peripheral neuropathy. [AR 726] He recommended various therapies, but noted that blood sugar control would best control Plaintiff’s pain and he would not consider interventional therapy until he had better glucose control long term. [AR 726] Also at this time Plaintiff saw Dr. Jennifer Jansen on March 11, 2010, at National Jewish Health for assessment and diabetes management. [AR 360-67, 750-57]

On March 26, 2010, Ms. Bouchard assessed fibromyalgia. [AR 483] On July 16, 2010, Ms. Bouchard noted Plaintiff’s back and leg pain was “most likely neuropathy” as Plaintiff’s diabetes was uncontrolled and he reported paresthesia, tingling and numbness. [AR 471-73] Later, in September of 2010, she again noted leg pain that is neuropathic and progressive, and she assessed polyneuropathy. [AR 465] On February 1, 2011, Ms. Bouchard noted his continued leg pain, due to poor blood sugar control, and increased depression. [AR 443]

Plaintiff’s treatment notes from the Barbara Davis Center, from February of 2011 through May 2012, indicate poor/suboptimal blood sugar control. [AR 580-605] At his visit on October 25, 2011, it was noted that he complications included nephropathym retinopathy and gastroparesis. [AR 590] His diagnosis at that time was: DM renal manif. type 1; diabetic nephropathy; depression with anxiety; GERD (gastroesophageal reflux disease); and hyperlipdemia. [AR 593]

On September 27, 2011, Ms. Bouchard assessed Plaintiff for the Jefferson County Social Services and the Colorado Works Program. [AR 553-69] Ms. Bouchard indicated a diagnosis of: Type 1 diabetes, severe, difficult to control; polyneuropathy, severe and progressive; and depression, moderate to severe and related to chronic disease. [AR 554] She opined that Plaintiff was unable to work. [AR 556] Ms. Bouchard filled out a “Diabetes Mellitus Medical Source Statement” indicating Plaintiff’s symptomology, with a “fair” prognosis, and that he was “progressively worsening over clinical course.” [AR 558] She indicated that Plaintiff’s “fluctuating blood sugar and progressive neuropathy has severe effect on [his] balance, stamina, fatigue and pain” and that his depression affected his physical condition. [AR 558] Ms. Bouchard opined that Plaintiff could: walk about one to two city blocks without rest or severe pain; sit 15 minutes and stand and walk 15 minutes at one time; and stand and walk about 2 hours total in an eight-hour working day. [AR 563] In addition, she opined that Plaintiff could lift 10 pounds occasionally, 20 pounds rarely, and never lift 50 pounds. [AR 564] She opined that he could twist and crouch occasionally, stoop rarely, and never climb ladders or stairs. [AR 564] She indicated he could grasp and twist, perform fine manipulations, reach in front and reach overhead only 10% of the time, and that he should avoid exposure to extreme cold, extreme heat, soldering fluxes, solvents and cleaners, fumes, odors and gases, dust and chemicals. [AR 564] Finally, she indicated he would need to be off task for 25% of the time or more; he was incapable of even “low stress” work; and he would likely have to be absent from work more than four days a month. [AR 565]

On April 6, 2012, Richard Carson, M.D., performed a state agency physical exam and filled out a “Medical Source Statement of Ability To Do Work-Related Activities” form. [AR 570-78] After examination, Dr. Carson’s impressions were: “Insulin dependent diabetes mellitus with a mild sensory neuropathy. He has chronic pain.” [AR 572] In assessing his functional capacity, Dr. Carson based his restrictions on Plaintiff’s “diabetes, neuropathy and chronic pain syndrome.” [AR 572] Specifically, Dr. Carson opined that Plaintiff could frequently lift and carry up to 10 pounds, and he could sit for 30 minutes, stand for 30 minutes, and walk for 30 minutes without interruption, for a total of six hours standing and 6 hours walking in an eight-hour work day. [AR 573-4] In addition, he could: use his hands continuously; operate foot controls occasionally; occasionally climb stairs and ramps, ladders and scaffolds, stoop and crouch; and could frequently balance, kneel and crawl. [AR 575-6] Dr. Carson also assessed a number of applicable environmental limitations including no exposure to unprotected heights, moving mechanical parts, extreme cold, and vibrations, and only occasional exposure to operating a motor vehicle, dust, odors, fumes and pulmonary irritants, and extreme heat. [AR 577]

Thereafter, on July 13, 2012, Plaintiff underwent an electromyogram and nerve conduction study (an EMG/NCS) of his upper and lower extremities. [AR 629-31] The nerve study revealed “evidence of mild . . . sensory and motor polyneuropathy most likely from his diabetes . . . . He also has a mild left ulnar neuropathy at the left wrist possible from an old injury. Based on his history, he probably also has a small fiber neuropathy.” [AR 629]

Plaintiff’s medical records occasionally indicate a diagnosis of depression and/or anxiety without treatment. [AR 541, 536, 443, 585, 554] Then, on July 12, 2010, Plaintiff walked in to Jefferson Center for Mental Health seeking care for his depression and stress. [AR 758-71] On intake, his diagnosis was Major Depressive Disorder, Single Episode, Moderate and his global assessment of functioning (GAF) was assessed at 50. [AR 758] He reported decreased appetite, decreased energy, depressed mood, guilt ruminations, anxiety/irritability, tearfulness, and social isolation. [AR 759-64]

On July 21, 2010, Plaintiff underwent a state agency Adult Comprehensive Psychiatric Consultation with Michelle Warfield, Ph.D. [AR 775-78] Dr. Warfield’s interview indicated that he had “no history of depressive episodes and no symptoms of depression” until recently, within the last 6 months “when he became less motivated ‘because of my pain.’” [AR 777] Plaintiff “reports current depressive symptoms of lack of concentration, no energy, sadness with occasional crying and agitation and irritability” but shows no symptoms of mania, psychosis or anxiety. [AR 777] Dr. Warfield diagnosed Plaintiff with adjustment disorder with depressed mood, chronic, and assigned him a GAF score of 60. [AR 778] Dr. Warfield concluded that Plaintiff would “need assistance in managing his funds due to limited cognitive abilities” and that he:

appears to be experiencing symptoms of depression related to chronic medical problems. His cognitive abilities appear limited. He should be able to understand, remember and carry out simple one-step instructions, but would likely have marked difficulty understanding and carrying out complex instructions. The claimant appears mild-mannered however, in his interaction during the interview, thus it is thought that it ...

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