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Perez v. Colvin

United States District Court, D. Colorado

December 9, 2015

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



This matter is before the Court on Plaintiff Jose Paul Bencomo Perez’s (“Plaintiff”) request for judicial review pursuant to 42 U.S.C. § 405(g). (ECF No. 1.) Plaintiff challenges the final decision of Defendant Carolyn W. Colvin, Acting Commissioner of the Social Security Administration, by which she denied Plaintiff’s applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) respectively under Titles II and XVI of the Social Security Act (“Act”). An Administrative Law Judge (“ALJ”) ruled Plaintiff was not disabled within the meaning of the Act and therefore not entitled to DIB or SSI.

Defendant provided the Court with the administrative record. (ECF Nos. 10; 10-1; 10-2; 10-3; 10-4; 10-5; 10-6; 10-7; 10-8.) The parties have fully briefed the matter and it is ripe for adjudication. (ECF Nos. 13; 16; 17.)

For the reasons set forth below, the Court vacates Defendant’s denial of Plaintiff’s DIB and SSI applications and remands for further proceedings consistent with this Order.


In April 2009, Plaintiff applied for DIB and SSI alleging he was disabled as of January 22, 2009 (Tr. 238-47), due to the following conditions that limit his ability to work: “spinal injury - severe pain in lower back and tailbone, long history of shoulder problems, mood disorder” (Tr. 317). After Plaintiff’s applications were initially denied (Tr. 154-159), Plaintiff requested a hearing before an ALJ (Tr. 160) which occurred in March 2011 (Tr. 45-79). In 2011, the ALJ denied Plaintiff’s applications. (Tr. 126-150.) Plaintiff requested review of the ALJ’s decision and, in 2012, the Appeals Council remanded the matter to the ALJ for further consideration. (Tr. 151-153.) Subsequently, in February 2013, Plaintiff had another hearing before the ALJ. (Tr. 80-97.) In March 2013, the ALJ issued the at-issue decision. (Tr. 14-44.) Plaintiff requested review of the ALJ’s decision, and in July 2014, the Appeals Council denied such review. (Tr. 1-13.) Plaintiff timely requested judicial review before the Court.

A. Background and Relevant Medical Evidence

Plaintiff was born in 1977. (Tr. 240.) Plaintiff completed high school and attended Job Corps. (Tr. 323.) There is conflicting evidence as to whether Plaintiff attended special education classes. (Tr. 49, 323, 370, 451.) Plaintiff reported his past work[1] as a dishwasher[2], general laborer[3], harvest-laborer, and painter[4]. (Tr. 318.)

Plaintiff claims he became disabled on January 22, 2009 due to a combination of physical and mental health impairments. (Tr. 244, 317.) At the second hearing in this matter, Plaintiff’s counsel raised an issue as to whether Plaintiff’s mental impairments include an intellectual disability. (Tr. 96.)

Plaintiff has an extensive medical history. Neither party disputes that Plaintiff has not always been compliant with his providers’ recommendations or their prescribed medical treatments.

In October 2008, physician assistant (“PA”) Eric Frevert diagnosed Plaintiff with bipolar disorder and prescribed Plaintiff medication. (Tr. 442.) Additionally, Frevert diagnosed Plaintiff with right shoulder tendonitis. (Tr. 442.)

In April 2009, PA David Daboll diagnosed Plaintiff with back pain. (Tr. 433.) James Hubbard, M.D., diagnosed Plaintiff with mild loss of lumbar lordosis. (Tr. 418.)

In June 2009, PA Frevert examined Plaintiff and stated that he was not totally disabled and recommended vocational rehabilitation. (Tr. 422.)

In July 2009, Alan Ketelhohn, M.D., a state-agency physician, reviewed the medical record and concluded that Plaintiff could lift 20 pounds occasionally and ten pounds frequently; stand and/or walk about six hours in an eight-hour workday; and sit six hours in an eight-hour workday. (Tr. 107-08, 120-21.) In addition, Plaintiff could push and/or pull without limitation, and had no postural, manipulative, visual, communicative, or environmental limitations. (Tr. 107-08, 120-21.)

In July 2009, Richard Madsen, Ph.D., conducted a psychological consultative examination. (Tr. 448-52.) Dr. Madsen diagnosed Plaintiff with bipolar disorder, posttraumatic stress disorder, developmental learning disorder, impaired intellectual functioning, and personality disorder. (Tr. 451.) Dr. Madsen opined that Plaintiff’s ability to do work-related activities is at the marked level because Plaintiff has “difficulty maintaining a regular work schedule, focusing and concentrating on work, relating to peers, coworkers, supervisors, and the general public.” (Tr. 451.)

In July 2009, Alberta Ziomek, M.D., a state-agency psychiatrist, reviewed the medical record and completed a Psychiatric Review Technique Form. (Tr. 104-05.) Dr. Ziomek found that Plaintiff had moderate restrictions in the activities of daily living, social functioning, and in maintaining concentration, persistence, or pace. (Tr. 104-05, 117-18.) Dr. Ziomek found Plaintiff had no extended episodes of decompensation. (Tr. 104-05, 117-18.) Dr. Ziomek opined that Plaintiff is capable of performing simple, repetitive work activity without close contact with the public and co-workers. (Tr. 103, 116.)

In June 2010, Frevert completed a Med-9 form[5], in which he opined that Plaintiff was disabled for six months due to bipolar disorder, chronic ...

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