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Harden v. Colvin

United States District Court, D. Colorado

January 29, 2016

CAROLYN COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


MICHAEL E. HEGARTY, Magistrate Judge.

Plaintiff Tammy Harden appeals from the Social Security Administration ("SSA") Commissioner's final decision denying her application for disability insurance benefits ("DIB"), filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-433. Jurisdiction is proper under 42 U.S.C. § 405(g). The parties have not requested oral argument, and the Court finds it would not materially assist the Court in its determination of this appeal. After consideration of the parties' briefs and the administrative record, the Court affirms the ALJ's decision and the Commissioner's final order.


I. Procedural History

Plaintiff seeks judicial review of the Commissioner's decision denying her application for DIB benefits filed on January 9, 2012, claiming arthritis, wrist issues, back problems, and bad knees and hips, with an alleged onset date of March 1, 2011. [AR 12, 148-49, 188] Because Plaintiff applied for DIB only, she had to establish that her disability began before her September 20, 2012, date last insured. [AR 15] After the application was initially denied on July 6, 2012 [AR 78], an Administrative Law Judge ("ALJ") held a hearing on July 18, 2013, upon the Plaintiff's request [AR 30-64]. On August 12, 2013, the ALJ issued a written, unfavorable decision, finding Plaintiff had not been disabled from the alleged date of the onset of disability through the date she was last insured because considering Plaintiff's age, education, work experience and residual functional capacity ["RFC"], there were jobs existing in significant numbers in the national economy that Plaintiff could perform. [AR 9-29] On September 23, 2014, 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 1-6, 7-8] See 20 C.F.R. § 404.981. Plaintiff timely filed her Complaint with this Court seeking review of the Commissioner's final decision. [Docket #1]

II. Plaintiff's Alleged Conditions

Plaintiff was born on September 5, 1969, and was 42 years old on the alleged onset date. [AR 25] The ALJ found that Plaintiff had an associate's degree in applied arts and science as a legal assistant, and past relevant experience as an administrative clerk, accounting clerk, and file clerk. [AR 34, 61] Plaintiff, a former administrator in the Air Force and Navy, has a long record of medical records mostly from the Department of Veterans Administrative ("VA") providers and involving both physical and mental issues. [AR 1298] However, as Plaintiff's issues on appeal do not question the ALJ's handling of the mental RFC but merely the physical, the Court will focus only on the physical. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) ("We will consider and discuss only those of [plaintiff's] contentions that have been adequately briefed for our review.")

A. Knee and Hip Issues

Plaintiff had long experienced knee pain and osteoarthritis of the hip. [AR 360, 563] A November 22, 2011 MRI showed the left knee had marrow conversion but no internal derangement. [AR 828] She received periodic lidocaine injections in her knees in late 2011. [AR 933] In September 2012, additional MRIs of her knees showed minor abnormalities. [AR 1154-55]. In January 2013, she reported daily, deep pain in her knees and hips, which worsened with activity. [AR 1308]

B. Upper Extremity Issues

The record first indicates Plaintiff experienced pain in her left wrist at an appointment on May 22, 2009, although she at that time reported to the doctor that the pain was "chronic." [AR 803, 491] She periodically complained of pain in her left wrist at subsequent visits and on August 2, 2010, went to the ER for wrist and hand pain. [AR 528] September 7, 2010 x-rays showed minimal joint degenerative changes. [AR 486] A visit on September 27, 2010 notes her pain had increased, her first and second digits were tingling, and she was struggling with household chores. [AR 474] However, the same notes show a 5/5 in grip strength despite tingling. [ Id. ] After seeing a chiropractor, Plaintiff told her provider on October 7, 2010, that her hand pain had improved "tremendously." [AR 469] Pain returned, however, by December [AR 413], and in January 2011, she received a left wrist splint [AR 387]. An April 11, 2011 MRI showed a large geode (cyst) of the lunate bone, a small perforation in her joint, a cyst in the soft tissues of part of the wrist, and a small volume of fluid present. [AR 233] On July 6, 2011, Plaintiff reported increased hand pain after a fall. [AR 1082] An August 18, 2011 occupational therapy consult included that Plaintiff had difficulty gripping or lifting objects with her left hand and had 8/10 pain at rest and 10/10 pain with activity. [AR 1-54] Yet, shortly after that appointment, she again had full grip strength at 5/5 [AR 909], although her wrist pain led her to have surgery on December 19, 2012, after the date of her last insured. [AR 1327, 1555] In April 2013, she fell on her wrist and injured it again. [AR 1224]

C. Spine Issues

Plaintiff reported her spine problems began in June 2008 when she was in an automobile accident. [AR 562] In 2010, she visited a non-VA doctor and received a sciatic nerve block, which she reported temporarily alleviated her pain. [AR 297, 562] Since the accident, Plaintiff reported intermittent pain, occurring most days, and said she had experienced two flares in a year's span lasting for two days each. [AR 563] Other visits to doctors included complaints of back pain. [AR 464, 434, 404] An April 11, 2011 MRI of her lumbar spine showed basically normal results with the exception of a high signal lesion that the doctor wanted to investigate further. [AR 232] Plaintiff periodically reported ongoing back pain to her doctors in 2010-2013. [AR 464, 434, 369, 328] At a February 14, 2011 appointment, she reported her back pain was not constant, but brought on or exacerbated by daily activities such as stooping, bending or lifting. [AR 373]

In May 2011, Plaintiff consulted with a neurosurgeon regarding her lower pack pain. [AR 1104] The doctor reviewed the April 2011 MRI and found Plaintiff's sciatica could be the result of compression of the sciatic nerve outside the spine, but he found surgical intervention was not indicated. [AR 1005] Another MRI, this time on August 8, 2011, showed disc desiccation at L5-S1 compatible with degenerative changes. [AR 1018] By March 7, 2012, she presented with chronic back pain that worsened with lifting. [AR 1548] The doctor noted that they discussed the chronic nature of the back pain and that there would be no way to eliminate it completely. [ Id. ]

D. Other Impairments

Plaintiff began complaining of left foot pain in 2010, the result of bunions she had been experiencing for some time. [AR 241, 452] On March 22, 2011, she was assessed with a bunion deformity and mild hammertoe, resolvable only via surgery. [AR 351] She underwent surgery in August 2011. [AR 1034-36] By January 2012, she was walking and reported only mild foot pain when walking or driving. [AR 890] Pain in her knees led to a diagnosis of muscle weakness, but x-rays were normal. [AR 243] She received injections in her knee to help with the pain. [AR 946] The record also shows her having issues with neck pain. [AR 276, 271, 360] These complaints led a doctor at the orthopedic clinic to note that Plaintiff may have issues with fibromyalgia. [AR 1247] Plaintiff also went to the emergency department to receive medication for migraine headaches. [AR 1353] Additionally, Plaintiff thought she had experienced asthma attacks, but a doctor noted they were more likely panic attacks. [AR 361]

III. Medical Opinion Evidence

The record does not contain functional capacity evaluations made at the request of Disability Determination Services. However, just before Plaintiff claimed she became disabled, she underwent a number of evaluations, most of them compensation and pension ("C&P") examinations performed by the VA to determine the level of her service-related disability. While her service-related disabilities are not at issue in this appeal, the examiners commented on other complaints of pain, such as Plaintiff's wrist and back pain, thus these evaluations were considered by the ALJ. [AR 22-26]

In February 2010, staff physician Dr. Richard Oh evaluated Plaintiff. [AR 377-85] Plaintiff reported disability from mood disorder, anxiety, and pain in her knees and hips. [AR 378] Dr. Oh opined Plaintiff "would not be limited in any primarily sedentary job and would be able to stand up to two hours and to walk around an office as needed to perform a job as an office assistant as she has been able to do that job without special accommodations." [AR 382] In January 2011, just prior to alleged her onset of disability, Plaintiff underwent another C&P examination, this time by Dr. Caryl Murchinson, who noted Plaintiff could perform sedentary work, stand two hours per day, and walk around the office as needed. [AR 382-86] Later, in April 2012, another C&P examiner, Dr. Teresita Marcelo, said Plaintiff's knee and lower-leg conditions impacted her ability to work in that she could sit for 30 minutes to an hour, stand for 30-to-45 minutes, walk for not more than two blocks at a time, lift 30 pounds, and that Plaintiff must change positions. [AR 1506-08, 1510-1521] She also found Plaintiff independently handled activities of daily living, such as "dressing, undressing, bathing, writing, eating, [and] driving." [AR 1508] Dr. Marcelo additionally noted that Plaintiff's foot condition did not impact her ability to work. [AR 1437]

In January 2013, after Plaintiff's last date insured, a nurse practitioner at the VA, Debra McMurdo, noted Plaintiff "should not be lifting or bending (nothing heavier than a carton of milk) at this time." [AR 1313] McMurdo's report indicated Plaintiff had recently had left-wrist surgery, so Plaintiff should not be lifting with that hand, but she would be evaluated further as the wrist healed. [ Id. ] Finally, in February 2013, Dr. Karen Ksiazek performed another C&P, finding Plaintiff's hip and knee issues did not limit her ability to work and noting her agreement with Dr. Murchinson's previous conclusions. [AR 1268-80]

IV. Hearing Testimony

The ALJ held a hearing on July 18, 2013. [AR 30-64] Plaintiff noted she has joint custody of her nine-year-old son, who lives with her half the time, and full custody of her four-year-old granddaughter. [AR 35] She also has two adult children. [ Id. ] She served as an administrator in the Air Force and Navy for four years until 2002, when she received a hardship discharge because of her divorce. [AR 37, 1298] Plaintiff testified she receives disability benefits from the VA in the amount of $1, 089.00 a month, a 60-percent service-related disability for her mental health and knees and hips. [AR 35-37] She does not drive because she does not have a car so instead takes the bus. [AR 36] Plaintiff told the ALJ her "main issues" were depression and Post Traumatic Stress Disorder ("PTSD") caused she thinks by being in a car accident five years prior. She also said she had pain in her back, knee, and neck that limits her, but that she "can move." [AR 46-48].

When the ALJ asked her if she could perform a job in which she had to sit most of the day 40 hours per week, Plaintiff testified she could not do so:

... mainly because of my depression and anxiety. It's hard for me to work full time and juggle everything and work responsibilities. Like getting the kids [to] daycare, to school, and getting there, and driving there, or riding the bus. It's both physical and mental, but moreso the extra stress working full-time and juggling everything.

[AR 57-58] However, she said she could clean her apartment, wash clothes, cook simple meals, go grocery shopping, and care for her granddaughter, although her approach is to do things "a little at a time." [AR 43, 52-54] She told the ALJ she has the ability to walk two blocks to the bus stop, stand for 15-to-30 minutes, and sit 30 minutes to one hour. [AR 48-49]. She noted she takes medications for pain, and when the medications are working, her pain is generally at a five-to-six out of 10. [AR 51] However, she said sometimes the pain is "at least a ten" everywhere - in her back, knees, and hips - four-to-six days a week "depending on what's going on." [ Id. ] For pleasure, Plaintiff said she reads on her iPad, watches television with her granddaughter, and spends time on Facebook. [AR 55-56] She also serves as a volunteer for the American Legion. [AR 60]

Plaintiff's attorney then examined her. [AR 58-60] In response to the attorney's questions, Plaintiff said she had four-to-six bad days each week, although it was not clear whether she thought this was because of psychological issues or pain. [AR 59] She said she struggled to sit for an entire day, using the example that she had attended an American Legion convention where she sat frequently on a Friday and Saturday; by Sunday, it was difficult for her to get up and down. [AR 60] A vocational expert ["VE"] testified at the hearing that Plaintiff's past relevant work included administrative clerk, accounting clerk, and file clerk - all with light exertional levels. [AR 61] The ALJ then gave the VE the following scenario:

What I would like to do is stick with sedentary work, but look at unskilled, very simple, repetitive kinds of jobs where you're doing pretty much the same thing every day and the job itself doesn't change. I would like you to look at jobs that have very little decision making required, and then physically no climbing or balancing. I would say no crouching, crawling, or kneeling either, and occasional bending. And let's see, and then I would say limited contact with the public and her coworkers.

[AR 61] Based on that scenario, the VE concluded that a person with Plaintiff's RFC could perform occupations that included an addressor (25, 000 jobs nationally, 200 in Colorado), a final assembler (14, 000 jobs nationally, 100 in Colorado), and a lens inserter (8, 000 jobs nationally, 80 in Colorado). [AR 61-62]

Plaintiff's lawyer submitted additional medical evidence to the ALJ after the hearing, which the ALJ considered. [AR 12] The ALJ issued an unfavorable decision on August 12, 2013. [AR 09-29]


I. SSA's Five-Step Process for ...

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