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Murdock v. Colvin

United States District Court, D. Colorado

March 17, 2016

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


Michael E. Hegarty United States Magistrate Judge

Plaintiff Angelique Murdock appeals from the Social Security Administration (“SSA”) Commissioner’s final decision denying her application for disability and 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 reverses the ALJ’s decision and remands the matter to the Commissioner for further consideration.


I. Procedural History

Plaintiff seeks judicial review of the Commissioner’s decision denying her application for DIB filed on January 15, 2010; Plaintiff claims benefits for the period of her disability onset, November 15, 2005 through her date of last insurability, March 31, 2008. [Administrative Record (“AR”) 292-295] After the application was initially denied on June 6, 2010 [AR 174-176], an Administrative Law Judge (“ALJ”) scheduled a hearing upon the Plaintiff’s request for November 29, 2011 [AR 197-200]. At the hearing, the Plaintiff, a medical expert, and a vocational expert testified. [AR 78-120] The ALJ issued a written ruling on January 12, 2012 finding Plaintiff was not disabled during the period November 15, 2005 to March 31, 2008 because Plaintiff could perform three of her past jobs considering her age, education, work experience and residual functional capacity. [AR 151-162] On June 18, 2013, the SSA Appeals Council remanded the case to the ALJ for assessing a residual functional capacity for light work without explanation and despite the medical expert’s opinion that Plaintiff could perform sedentary work. [AR 167-169] The ALJ then set another hearing for October 10, 2013 at which the Plaintiff and a vocational expert testified. [AR 38-76] The ALJ issued a second opinion on November 8, 2013 finding Plaintiff was not disabled during the period at issue because she could perform two of her past jobs. [AR 15-37] The SSA Appeals Council subsequently denied Plaintiff’s administrative request for review of the ALJ’s determination on February 9, 2015, making the SSA Commissioner’s denial final for the purpose of judicial review [AR 1-3]. See 20 C.F.R. § 416.1481. Plaintiff timely filed her complaint with this Court seeking review of the Commissioner’s final decision.

II. Plaintiff’s Alleged Conditions

Plaintiff was born on November 7, 1969; she was 40 years old when she filed her application for DIB on January 15, 2010. [AR 331-335] Plaintiff claims she became disabled on November 15, 2005 [id.] and reported that she was limited in her ability to work due to her multiple sclerosis and seizures. [AR 337] Plaintiff’s “caregiver, ” Louis Repstine, completed several questionnaires in May 2010 in tandem with Plaintiff’s application, in which he described Plaintiff as having grand mal seizures approximately 12 times per year during which she loses consciousness and bodily control; the seizure medication also causes her to be dizzy, lose her balance, and have blurred vision. [AR 348]

In addition, Plaintiff experienced radiating pain, loss of memory, and confusion that kept her from doing “anything for any length of time” [AR 349-350], including dressing, bathing, cleaning the house, driving, shopping, taking medication, and feeding herself. [AR 351-358] The caregiver helped with these activities in addition to caring for Plaintiff’s daughter and dog. [Id.] Plaintiff was able to use the toilet and telephone people on a daily basis. [Id.]

The record (relevant for the time period at issue, November 15, 2005-March 31, 2008) indicates that from February 3-8, 2005, Plaintiff was admitted to Littleton Adventist Hospital for tests; she was then diagnosed with multiple sclerosis and seizure disorder. [AR 999-1000] She was discharged with medication and appeared to be “in good spirits, walking well, and thought to be stable for discharge.” Id. On February 14, 2005, Plaintiff presented to a neurologist, Beverly Gilder, M.D., for treatment; she reported to Dr. Gilder that after she left the hospital, she could not walk and experienced significant pain. [AR 532-534] Dr. Gilder noted that Plaintiff had historically suffered from migraine headaches - 12 per month - and was very distressed and emotional. The doctor concluded that Plaintiff had a “strong probability of developing multiple sclerosis, ” she “needs to be on immunomodulating therapy, ” and Plaintiff’s “emotionality and depression” were likely “related to the steroids” she received at the hospital. [Id.]

Dr. Gilder continued to see Plaintiff through the end of 2005 at which time Plaintiff complained of severe, continued pain, so the doctor ordered MRI scans of the head and spine; only the spine was completed and “showed no spinal cord lesions suggestive of MS” so the doctor ordered another brain scan. [AR 524-525] On March 13, 2006, Dr. Gilder reported that the MRI scan of Plaintiff’s brain “shows by the report no worsening since her previous study, neck shows resolution of a couple of lesions. Nothing enhances. This is very reassuring.” [AR 522-523] Two months later, Plaintiff reported to Dr. Gilder that “[s]he overall is feeling improved and better and her pain is under control, ” but her “biggest complaint is continued dizziness.” [AR 521]

In June 2006, Plaintiff presented to the emergency room at the Medical Center of Aurora with weakness and dizziness; the provider concluded that she likely had taken too much Tegretol (for seizure disorder). [AR 893-895] Plaintiff reported to the provider that she had “been seizure-free for several years” and the provider noted it was “unlikely” that Plaintiff had experienced an exacerbation of her MS. [Id.] However, in August 2006, Plaintiff presented to the emergency room at Littleton Hospital at which time she underwent another MRI brain scan; the impression was “moderate multiple sclerosis” and it was noted that “a new left frontal subcortal lesion” had appeared since February. [AR 923] Later that month, Plaintiff presented to Dr. Gilder, who determined Plaintiff had experienced an exacerbation of her MS and discussed with Plaintiff the possible need to see an “ENT” for her dizziness. [AR 517]

The next record is from Plaintiff’s meeting with Dr. Gilder on February 1, 2007; Plaintiff reported that her symptoms had “worsened, ” but the doctor “reassured the patient that her examination looks fairly normal at this point” and suggested some changes to Plaintiff’s medication. [AR 515] Then, in July 2007, Plaintiff saw Dr. Gilder and told her she was “actually feeling better than previously, ” but was having migraines three days per week. [AR 514] However, on October 18 2007, Plaintiff reported she was feeling worse with “aches everywhere” and “headaches” [AR 513]; the doctor ordered another MRI brain scan, which revealed “white matter lesions without associated enhancement ... no acute lesions identified.” [AR 917] Two days later, Plaintiff presented to Littleton Hospital where she was treated for an MS “flare” and dehydration. [AR 966-980] Dr. Gilder saw Plaintiff in November 2007 and concluded Plaintiff had likely experienced an MS exacerbation in October. [AR 511] The following month, December 2007, Plaintiff fell down the stairs and fractured her left ankle; she was discharged with medication, crutches and a walker boot. [AR 937-938; 886-892]

Plaintiff saw Dr. Gilder again in February, May, August, October, and December 2008; Plaintiff’s symptoms appeared to remain consistent (pain, weakness, dizziness) throughout this time, except for some left shoulder pain in late 2008. [AR 504-510] The doctor noted that she “explained to the patient that she is not taking the medications appropriately” and made suggestions for medication changes to improve the Plaintiff’s symptoms. [Id.]

On May 19, 2010, Plaintiff presented for a consultative pyschological evaluation with Aimee Henley, Ph.D. in accordance with Plaintiff’s social security benefits application. [AR 535-538] Plaintiff reported that she had experienced three MS flare-ups in 2008, 4-5 flare-ups in 2009, and four grand mal seizures in the previous four months. [Id.] Plaintiff stated “the MS and seizure disorder were her only known medical problems.” She also reported she last worked “three years ago” and “was in and out of the hospital at the time and could not maintain her work load.” [Id.] Dr. Henley noted, “Ms. Murdock’s records indicated anxiety was a problem, but she did not report these symptoms.” [Id.] After conducting a mental status examination, Dr. Henley diagnosed Plaintiff with “major depressive disorder, recurrent, moderate” and assessed a Global Assessment of Functioning (GAF) score of 50.[1] [AR 537] Dr. Henley concluded:

The claimant displayed cognitive impairments during the mental status examination, including in recent memory, remote memory, fund of knowledge, attention and concentration, and ability to think abstractly. This was likely a decline from her level of functioning before the MS and seizure disorder worsened. Her major obstacle to working successfully are the physical and mental effects of the MS and seizures. Attention and concentration are likely moderately impaired, persistence and pace may be significantly impaired. Her ability to adapt to change is likely mildly impaired. Her ability to cope with additional stress is likely moderately impaired. She may have difficulty managing her own funds. Recommendations for this claimant include continuing to seek treatment for her MS and seizures. Her treatment providers were aware of her complicated medication regimen and at least one note indicated an intention to reduce the number of medications she was on. She might want to seek psychotherapy as a complimentary [sic] treatment for the depressive symptoms. A health psychologist who specializes in working with people with MS would be ideal. A support group would also be a good idea.

[AR 538 (emphasis added)] Following Dr. Henley’s evaluation, an SSA reviewing examiner, Mary Ann Wharry, Psy.D., reviewed the evidence provided on June 7, 2010, and concluded there was “insufficient evidence to substantiate the presence of a [psychological] disorder” for purposes of meeting the “A, ” “B, ” and ...

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