United States District Court, D. Colorado
RAYMOND P. MOORE
United States District Judge
I. PROCEDURAL HISTORY
Plaintiff Jerry Archuleta (Plaintiff), applied for Social Security Disability Insurance (DSI) benefits and Supplemental Security Income (SSI) on January 5, 2009, alleging disability beginning November 18, 2008. (ECF No.13, pp.80-83). He was last insured on June 30, 2010. (ECF No. 13, p.115).
His claims were initially denied in October, 2009. (ECF No. 13, pp.18, 36-44). On March 23, 2010, Plaintiff filed a timely request for an administrative hearing. (ECF No.13, pp.18, 45). He was granted a hearing before an administrative law judge (ALJ), on November 10, 2011, where he appeared, testified, had witnesses testify and was represented by an attorney. (ECF No.13, pp.515-580). The Administrative Law Judge (ALJ) denied Plaintiff’s application for benefits on November 30, 2011. (ECF No.13, pp.18-29). This denial became the Commissioner of Social Security’s (Commissioner) final decision on January 23, 2013, when after considering Plaintiff’s supplemental material, the Appeals Council denied Plaintiff’s appeal of the ALJ’s decision. (ECF 13, pp. 7-10). Plaintiff now seeks review of that final decision. (ECF No.1).
II FACTUAL HISTORY
A. Social History
Plaintiff was born on November 1, 1962. (ECF No. 13, p.114). He was 46 years old on November 18, 2008, his alleged disability onset date. (ECF No. 13, p.114).
Plaintiff completed 11th grade of high school in 1980 and has not attended any special classes or attained any special job training, trade, or vocational school. (ECF 13, p.124). His reported work history over the past 15 years includes work as a farm laborer and maintenance worker at a metal products factory. (ECF No.13, pp.121-22, 563).
The record is unclear with regard to Plaintiff’s marital status. In his initial application for DSI, Plaintiff reported that he was married in 1988 (ECF No. 13, p.81), however, his hearing testimony indicates that he currently lives with his mother (ECF No.13, p.523). His mother contradicted this in her testimony stating that he lived with her “sometimes.” (ECF No. 13, pp. 523, 554, 558). It appears that he does not have his own housing and relies on girlfriend(s) or his mother for housing. Id.
B. Relevant Medical History
On November 18, 2008, Plaintiff was admitted to hospital with acute fractures of his tibial plateau in his right knee subsequent to an altercation with police. (ECF No. 13, p.235). At the time of admission Plaintiff was acutely intoxicated with a blood alcohol level of .304. Id. He was discharged after surgical repair of his fractures, on December 8, 2008 with instructions to follow up at his local clinic and to have a return appointment with his surgeon on December 15, 2008. (ECF No. 13, pp. 234-36). At discharge Dr. Kitchen considered Plaintiff “ambulatory with walker (non-weight-bearing right lower extremity), capable of self-care and activities of daily living . . . .” (ECF No. 13, p. 236). His mother had received instructions for his dressing changes. (ECF No. 13, p.234). Plaintiff received various discharge medications including Percocet for pain and a prescription for further post-discharge range of movement physical therapy. (ECF No.13, p.234).
In April, 2009, Dr. Campbell evaluated Plaintiff regarding the functional impacts of his medical conditions. (ECF No. 13, pp.374-78). Her summary noted that Plaintiff was seen for chronic right leg pain at the Sierra Blanca Medical Center on February 12, 2009. (ECF No.13, p.375). At that time his skin graft was not well healed, he was attending physical therapy and requested pain medication. Id. He was given a short-term prescription for Percocet and advised to establish with a clinic in Monte Vista to set up a long-term medication regime. Id. He was next seen at the Rio Grande Medical Center on February 26, 2009 requesting Percocet and was shifted to Ultram for pain. Id.
At Dr. Campbell’s consultation, Plaintiff reported that he was a “working alcoholic” and currently used alcohol to augment his prescribed pain medications. (ECF NO. 13, p.374). After a thorough examination, Dr. Campbell diagnosed Plaintiff with inter alia, a marked deformity and probably unstable right knee and opined that he could not use stairs without support, should limit bending, limit standing and walking to less than two hours a day, and could not kneel, squat or stoop effectively. (ECF No.13, p.377). She further opined that he was not completely independent in activities of daily living, needing assistance with accessing a bathtub and could not stand long enough to prepare full meals or do household chores. Id.
The following month, on May 22, 2009, Plaintiff was referred by the Department of Disability Determination Services, to Immaculate Wesley Psy.D., for a psychological evaluation with diagnosis and GAF score. (ECF No. 13, p.382). Dr. Wesley found Plaintiff had poor judgment, poor to fair insight, fair abstraction ability and estimated his IQ to be “at best” in the average range. Id. She diagnosed Plaintiff with: chronic and severe alcohol dependency; pain disorder associated with both psychological factors and a general medical condition; and an adjustment disorder with mixed anxiety and depressed mood. (ECF No.13, pp.382-83). She assessed his GAF score at 55, and opined that without physical and psychological therapy and medication, he was at risk for “fall[ing] deeper into alcohol use.” (ECF No. 13, p.383). She concluded that if clean and sober he might do well with some re-training but otherwise, without help, his prognosis was extremely poor. Id.
On June 1, 2009, Plaintiff failed to keep his scheduled appointment with his surgeon, Dr. Kitchen. (ECF No.13, p.405). On July 9, 2009, Plaintiff presented at Rio Grande Hospital Clinic (RGHC) requesting a refill of his Percocet. ECF.No.13, p.465). He was seen by Physician’s Assistant Bilak who evaluated Plaintiff, noting that he was currently incarcerated, hypertensive and gave him antihypertensive medication to lower his blood pressure. Id. On July 24, 2009, Plaintiff presented at RGHC requesting pain medication. (ECF No. 13, p.464). Dr. Howard prescribed 60 OxyContin and refilled Plaintiff’s prescription for Nexium (for indigestion). Id.
Dr. Kitchen saw and examined Plaintiff on August 11, 2009, when he also X-rayed Plaintiff’s right tibia, fibula and knee. (ECF NO. 13, p.406). He noted Plaintiff had been “lost to follow-up in April 2009”, that Plaintiff used a cane from time to time and some Percocet although it was unclear where he obtained the Percocet. (ECF No.13, p.403). Dr. Kitchen noted that Plaintiff had “essentially normal motor function below the knee other than his great toe.” Id.
Dr. Kitchen diagnosed Plaintiff with a significant mal-union and inward turning deformity of his right tibia which he opined was a result of Plaintiff’s substantial noncompliance with his recommended postoperative regimen by weight bearing and failing to follow his prescribed physical therapy regime. (ECF No.13, pp.403-04). Because of Plaintiff’s poor compliance to date, Dr. Kitchen did not recommend surgical repair of his deformity but instead fitted Plaintiff with a double upright-hinged brace to help with stability during his normal activities. Id. That same day Plaintiff (who was apparently still incarcerated), was seen by Dr. Helgeson at RGHC for follow-up on his chronic leg pain and was given a refill of his OxyContin and a prescription for Percocet. (ECF No. 13, p.463).
Approximately two weeks later, on August 28, 2009, Dr. Howard at RGHC saw plaintiff who was requesting pain medication. (ECF No.13, p.462). His prescriptions for OxyContin, Percocet and Nexium were refilled. Id. He next presented at the RGHC on September 10, 2009 where by Dr. Helgeson evaluated him, increased his OxyContin dosage and gave him a one-month supply of both OxyContin and Percocet. (ECF No. 13, p.461).
Dr. Helgeson next saw Plaintiff on October 5, 2009, again increased his OxyContin dosage, and provided prescriptions for OxyContin and Percocet for any break-through pain and for follow-up in one month. (ECF No. 13, p.460). She re-evaluated Plaintiff at RGHC on October 30, 2009, when she continued his pain medication and noted that she believed his hypertension was related to the pain he gets when ambulating. (ECF No.13, p.459). On December 14, 2009, Dr. Helgeson referred Plaintiff to Dr. Kitchen for re-evaluation because of his lack of improvement in pain and refilled his Nexium, OxyContin and Percocet. (ECF No. 13, p.455-58).
On January 26, 2010, Dr. Kitchen re-evaluated Plaintiff noting that Plaintiff had been extremely noncompliant with post-operative instructions which had resulted in a significant mal-union of his tibia, unchanged since his last evaluation four months ago in August 2009. (ECF NO. 13, p.418). Dr. Kitchen further noted that since he had last seen Plaintiff, Plaintiff had developed some early traumatic arthritis in his knee. Id. Dr. Kitchen recommended that Plaintiff seek a second opinion regarding a surgical intervention to correct his tibial malformation. Id.
There is a gap in Plaintiff’s medical records from January 2010 until October 2010 when Dr. Helgeson’s notes indicate that Plaintiff’s chronic pain had been managed by Dr. McMillan who had been “working with vocational rehab.” (ECF No.13, p.454). Dr. Helgeson then resumed managing Plaintiff’s chronic pain with monthly evaluations and refills of his pain medications. (ECF No.13, pp. 440-454).
On March 14, 2011, Dr. Helgeson completed a Residual Functional Capacity Questionnaire in which she opined that Plaintiff could: remain seated at a desk without needing to elevate his legs; stand and walk for 15 minutes at a time for a total of one hour in an eight-hour work day; would need rest breaks in bed or an easy chair every two hours during an eight-hour work day; walk with assistance of a cane but was unable to walk one block on uneven ground; use public transportation; carry out routine activities such as shopping and banking; climb a few steps with use of a single handrail; lift and carry one to ten pounds frequently, 11-20 pounds occasionally but never 21-50 pounds; work on a sustained basis except that pain interfered with his ability to complete a workday; and he would likely be absent from work more than four days per month. (ECF No.13, pp.468-75).
On April 30, 2011, Dr. Boatright saw and evaluated Plaintiff. (ECF No. 13, pp.484-87). After examination, Dr. Boatright concluded that plaintiff could sit and stand for six to eight hours; walk for two to four hours; was limited in areas requiring balance or with unprotected heights; should engage in no squatting or crawling; had no manipulative limitations and should be able to ...