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Ryan v. Colvin

United States District Court, D. Colorado

April 21, 2016

ROXANNE RYAN, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          LEWIS T. BABCOCK, District Judge.

         Plaintiff, Roxanne Ryan, appeals from the Social Security Administration ("SSA") Commissioner's final decision denying her application for disability insurance benefits, filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-433, and her 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 her applications for disability insurance benefits and for supplemental security income filed in August of 2006. [Administrative Record ("AR") 229-35, 236-240] After the applications were initially denied, an Administrative Law Judge ("ALJ") conducted an evidentiary hearing on June 11, 2009 and issued a written ruling on July 31, 2009 denying her applications. [AR 81-103, 108-28] Plaintiff appealed and, on July 8, 2010, the Appeal Council issued an order remanding the matter back to the ALJ for further development of the record and for reconsideration. [AR 129-32] The SSA Appeals Council ordered, in part, that on remand that ALJ should obtain medical expert opinion evidence regarding the nature and severity of Plaintiff's mental health impairments. [AR 131]

         The ALJ held a second evidentiary hearing on February 9, 2011. [AR 49-80] After reconsideration, the ALJ again denied Plaintiff's applications in a decision dated May 3, 2011. [AR 18-44, 1183-1200] The SSA Appeals Council declined to hear Plaintiff's request for review of this ruling, and Plaintiff appealed to this court. [AR 1-7] On March 25, 2014, Judge Marcia Krieger reversed and remanded the ALJ's denial on the basis that the Appeals Council instructed the ALJ to obtain medical expert evidence to determine whether any of Plaintiff's medically determinable impairments was equivalent to one of a number of listed impairments deemed to be so severe as to preclude substantial gainful employment, but that the medical opinion report obtained "was not sufficient to comport with the remand order." [AR 1114-25] See Ryan v. Colvin, 2014 WL 1238186 (D. Colo. Case No. 12-CV-02870-MSK, Mar. 25, 2014)(unpublished) (ruling that the report failed to compare Plaintiff's identified mental impairments with those listed impairments and thus it "did not meet the requirements of the [Appeals Council's] remand order or Social Security policy").

         Upon remand, a different ALJ heard Plaintiff's case. After another evidentiary hearing was held on June 9, 2014 [AR 1065-1108], the new ALJ denied her applications on September 4, 2014, on the basis that she was not disabled because considering her age, education, work experience and residual functional capacity ("RFC"), jobs exist in significant numbers in the national economy that Plaintiff could perform (Step Five). [AR 1133-59] The SSA Appeals Council subsequently denied Plaintiff's request for review of this ruling, making the SSA Commissioner's denial final for the purpose of judicial review. [AR 937-68] Plaintiff timely filed her complaint with this court seeking review of the Commissioner's decision.

         II. FACTS

         Plaintiff was born on October 25, 1973. [AR 368] She has some college education and completed her certification as a nursing assistant. Her prior employment includes work as a construction worker, stock clerk, informal waitress, cashier and nursing assistant. Plaintiff alleged that on April 30, 2005, she became disabled due to her major depressive disorder, anxiety, degenerative disc disease and chronic obstructive pulmonary disease (COPD). [AR 368] On appeal here, she alleges disability based on a combination of impairments including severe degenerative changes in her lumbar spine; COPD; tinnitus; atypical migraine; fibromyalgia; panic disorder with agoraphobia; memory disorders; major depressive disorder; and dysthymia with early onset. [Doc #13 pg.8]

         The medical records regarding Plaintiff's physical conditions reveal that she hurt her back in a work-related accident in the 1990s. [AR 528, 652, 791] Later, in 2003, Plaintiff was diagnosed with COPD with episodic exacerbations, increased fatigue and difficulty breathing with coughing spasms. [AR 774, 808, 870]

         Following her onset date in April 2005, Plaintiff reported to her primary care physician, Michael Adams, MD, recurrent back pain and increased stress in September of 2005. [AR 642-44] Dr. Adams prescribed pain and anti-anxiety medications. He also ordered physical therapy in October of 2005, but Plaintiff only went to one session in December of 2005. [AR 590-92, 643]

         In December 2005 Plaintiff reported continued back pain and reported being involved in a motor vehicle accident. [AR 645] An MRI dated December 8, 2005, revealed broad based disk protrusion at L5-S1 with central canal stenosis and posterior annular tear, as well as bilateral neural foraminal stenosis, left greater than right. It also revealed mild diffuse annular disk bulging at L4-L5. [AR 566, 794] Brent Clyde, MD, a neurosurgeon, evaluated Plaintiff for back pain that radiated down her legs, and opined that the MRI findings were consistent with progression of prior disk injury with very severe degenerative change at L5/S1 and disk protrusion. [AR 528-530, 791-92] In March 2006, Dr. Adams continued to treat Plaintiff with medication and noted that Plaintiff exhibited some fibromyalgia point tenderness. [AR 647]

         On September 4, 2006, Plaintiff reported to the hospital suffering from back pain after lifting a child from a grocery cart. [AR 625-632]

         On October 31, 2006, Plaintiff underwent a consultive examination with Ardella Kemmler, MD. [AR 650-56] Plaintiff reported low back pain, chronic bronchitis, and depression, and no problems with activities of daily living except she cannot do any kind of deep cleaning, and difficulty getting her leg up over the bathtub when her back is really hurting. Upon examination, Dr. Kemmler noted that Plaintiff was tender to palpation over her lower lumbar area and that her straight leg raising caused pain. [AR 653]

         During 2007, she continued on pain medications prescribed by Dr. Adams, who again noted tender points consistent with fibromyalgia on his examinations. [AR 754-56] On January 10, 2007, Rodney Anderson, MD, a non-examining state agency physician, reviewed Plaintiff's medical records related to her stenosis and annular disk bulge at L4-L5. [AR 465-72] He opined that Plaintiff could physically perform medium work, but would need to avoid concentrated exposure to dust, fumes, gases, and poor ventilation. [AR 466-469] Thomas Toft, MD, another non-examining state agency physician concurred with this opinion on May 2, 2007. [AR 516-520]

         An MRI on January 28, 2008 showed degenerative disk disease with disk desiccation at L4-L5 "similar compared to the prior study" and degenerative disk disease with disk desiccation and significant loss of height at L5-S1. [AR 671, 818-24] On examination of Plaintiff, Dr. Clyde found normal strength, reflexes and sensation in her lower extremities. Plaintiff had negative straight leg raises, and ambulated normally. [AR 816-17] Dr. Clyde opined that the MRI findings were "mild" and showed disk degeneration at L5-S1 with slight protrusion to the left paracentral location slightly compressing the lateral recess and foramen. [AR 817] Dr. Clyde opined that a simple discectomy would not solve Plaintiff's significant back pain; rather an arthrodesis or gesture placement was indicated, but not at this time due to Plaintiff's young age. [AR 817] On July 23, 2008 she reported being able to walk four miles per day on a treadmill. [AR 753]

         On March 3, 2009, Dr. Adams noted that on examination Plaintiff had "nearly all" of the standard trigger points for fibromyalgia. [AR 752] At that office visit, Dr. Adams worked with Plaintiff to fill out a "Fibromyalgia Residual Functional Capacity Questionnaire" for the SSA. [AR 752, 662-66] Dr. Adams indicated he did not know whether she had fibromyalgia, but identified diagnoses of: COPD, lumbago, vertigo, tinnitus, anxiety attacks, and kidney stone; for which he indicated a "fair" prognosis. [AR 662] Dr. Adams further indicated that he believed that Plaintiff was not a malingerer, and that emotional factors contributed to her pain and limitations. [AR 662] It was his opinion that Plaintiff would be limited to, essentially, less than a full range of sedentary work, with sitting limited to 30 minutes at a time for a total of 4 hour per day, standing 1 hour at a time, and needing to get up and walk around every 30 minutes for two minutes, and the need to change positions at will. He opined that she would need unscheduled breaks, probably every hour for 2-3 minutes each hour, and she could lift and carry up to 20 pounds occasionally, and had limited overhead reaching (50% of the time), could stoop only 5% of the day, and crouch only 5-10% of the day. He estimated she would be absent from work more than four times per month. [AR 664-665] Three months later, on June 2, 2009, Dr. Adams clarified that Plaintiff could not sit longer than 15 minutes without moving or standing, and reiterated that she would likely be absent more than four times per month. [AR 750]

         In April 2009 Plaintiff went by ambulance to the emergency room reporting extreme back pain. [AR 682, 691-700]

         A January 14, 2010 MRI showed mild annular disk bulging with small left paracentral posterior annual tear at L4-L5, which appears slightly larger than before, and prominent annular disk bulging at L5-S1, with central disk protrusion, possibly slightly larger than before. [AR 832-33] In the follow-up examination, Dr. Clyde indicated that this MRI showed severe degenerative disc collapse and "significant" progression in the modic endplate changes at L5-S1. [AR 813-15] He opined that Plaintiff's pain was primarily generated by the degenerated disc disease at L5-S1, with some contribution from the L4-5 level. [AR 815] Plaintiff's options were: surgery, epidural injections, physical therapy, chiropractic treatment or medical management. [AR 815] Also at this time, on January 14, 2010, Plaintiff was again examined by consultive examiner Dr. Kemmler. [AR 888-90] Dr. Kemmler opined that Plaintiff had back pain resulting in chronic leg pain with some minor weakness in the leg and no difficulty with gait. [AR 889]

         During 2010, Dr. Adams's notes indicate that Plaintiff's pain radiated from her back into her lower pelvis and into her left leg [AR 860], and that she was treating her back pain with too much medication and should instead be exploring other treatment options. [AR ...

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