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Kleiman v. Colvin

United States District Court, D. Colorado

April 26, 2016

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



Plaintiff, Andrew James Kleiman, appeals from the Social Security Administration (“SSA”) Commissioner’s final decision denying his application for disability and disability insurance benefits (“DIB”), filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-433, and his application for supplemental security income benefits (“SSI”), 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 the Court in its determination of this appeal. After consideration of the parties’ briefs and the administrative record, the Court reverses and remands the Commissioner’s final order.


I. Procedural History

Plaintiff seeks judicial review of the Commissioner’s decision denying his applications for DIB and SSI filed in December 2011 and April 2012, respectively. [Administrative Record (“AR”) 176, 180] After the application was initially denied on June 12, 2012, an Administrative Law Judge (“ALJ”) scheduled a hearing upon Plaintiff’s request for June 19, 2013. [AR 118] Plaintiff and an impartial vocational expert testified at the hearing. [AR 55] The ALJ issued a written ruling on July 12, 2013, denying Plaintiff’s Title II and Title XVI claims. The ALJ then received additional evidence from a mental health examination of Plaintiff. [AR 17, 21] On August 2, 2013, the ALJ issued an amended written ruling, finding the additional medical records did not change the previous decision. [AR 17] The ALJ found Plaintiff was not disabled since December 10, 2011, because Plaintiff: did not have a severe impairment equaling those listed in the applicable federal regulations; had the residual functional capacity (“RFC”) to perform light work as he could lift and carry 20 pounds occasionally and 10 pounds frequently; could sit for eight hours in an eight-hour day, stand for up to 30 minutes, and walk for 15 to 30 minutes per episode for a total of three to four hours; bend and crouch occasionally; and climb stairs very little. [AR 25-30] The ALJ reasoned that because Plaintiff could perform “light work” similar to his former position as a ticket taker and because such jobs exist in the national economy, Plaintiff could perform past relevant work. [AR 30] 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 1-4] See 20 C.F.R. § 416.1481. Plaintiff timely filed his Complaint with this Court seeking review of the Commissioner’s final decision. Complaint, docket #1.

II. Plaintiff’s Alleged Conditions

Plaintiff was born on February 21, 1981; he was 30 years old when he filed his application for disability on December 20, 2011, and 31 years old when he filed his application for SSI benefits on April 6, 2012. [AR 176-186] Plaintiff asserted his disability began on December 10, 2011, when he was 30 years old. [Id.] He indicated he was unable to work because of his disability caused by cardiovascular problems. [AR 216] Plaintiff claimed that he had problems lifting, squatting, walking, climbing stairs, and concentrating; he also needed to lay down frequently because of fatigue. [AR 229, 63-64]

At Plaintiff’s hearing before the ALJ, Plaintiff testified he was working as a part-time receptionist (19 hours per week) at a gym. [AR 16] He was also planning on going back to community college part-time to participate in a woodworking program. [AR 62] Previously, he had worked part-time as a cashier and stocking clerk at a liquor store [AR 61, 77], as a ticket taker for the Denver Center for the Performing Arts (“DCPA”) for five years, and as a clerk at a record store. [AR 73-74] The ALJ found Plaintiff was capable of performing past relevant work as a ticket taker. [AR 30]

III. Medical Evidence

A. Physical Health

The medical evidence shows Plaintiff first sought treatment on November 18, 2011, at Denver Health Medical Center (“Denver Health”) Urgent Care for reported exhaustion, diarrhea, leg swelling, and chronic shortness of breath. [AR 473, 476, 479] His healthcare providers could not identify a cause for his symptoms. [AR 477] Later that month, on November 23, 2011, Plaintiff returned to Denver Health with a jaundiced appearance, complaining of fatigue. [AR 471, 473] His liver function tests were abnormal, which the provider attributed to alcohol abuse. [AR 471] Plaintiff was told he did not have hepatitis, but he was advised to eliminate caffeine and alcohol from his diet and to get regular sleep. [Id.]

Plaintiff returned to Denver Health on December 15, 2011, complaining of shortness of breath, chest pain, nausea, itching, jaundiced appearance, and swelling in his legs. [AR 381, 368, 390-91, 433, 441] He admitted to past alcohol abuse, but said he had not used alcohol in a month. [AR 391, 386] He was hospitalized for the last half of December 2011. [AR 377-78] When he was discharged on December 30, 2011, the attending physician diagnosed him with nonischemic dilated cardiomyopathy, deep vein thrombosis, congestive hepatopathy, anemia, thrombocytopenia, severe tricuspid regurgitation, and anxiety. [Id.] Plaintiff had experienced no prior medical history, but the physician noted he had three months of progressive fatigue, dyspnea on exertion, and edema. [Id.] They also noted he had what appeared to be a partially collapsed lung. [AR 467] The physician prescribed drug treatment to attempt to improve his heart failure, but they noted there was little they could do for the tricuspid regurgitation except wait. [AR 378] The cause of his condition remained unexplained. [AR 377]

On January 18, 2012, Plaintiff returned to the cardiology clinic for a follow-up; an x-ray revealed his heart had improved but still had mild edema. [AR 351] The attending physician assessed Plaintiff with dilated cardiomyopathy, congestive heart failure, severe tricuspid regurgitation, pulmonary edema, and deep vein thrombosis. [AR 342] Two weeks later, on February 2, 2012, Plaintiff’s systolic blood pressure was in the 60s, and he reported fatigue. [AR 267] The examiner reported he appeared lethargic and thought Plaintiff “may need [a heart] transplant evaluation.” [AR 268] He was sent to the Emergency Department and hospitalized at Denver Health for five days. [AR 265, 268, 297] While there, he underwent a procedure that revealed normal functioning of the arteries but elevated pressure in his heart. [AR 274, 276] When he was discharged on February 7, 2012, he was diagnosed with acute decompensated systolic congestive heart failure, nonischemic dilated cardiomyopathy of undetermined etiology, history of deep vein thrombosis and pulmonary edema, and hyperbilirubinimia. [AR 274]

On April 5, 2012, at an outpatient visit to Denver Health, Plaintiff stated his health had improved, he could walk around all day, and he had recently “played catch [and] sprinted in city park.” [AR 494] Nevertheless, the ejection fraction of his heart was noted to be 10-20 percent, whereas a normal ejection fraction for a male his age should be 60 percent. [AR 590, 606] Later that month, on April 30, 2012, at a follow-up appointment for deep vein thrombosis, the doctor noted Plaintiff had increased energy since the last clinic visit, no shortness of breath, no chest pains, and that the edema was resolved. [Id.] His vital signs were stable with blood pressure at 93/55, and he “look[ed] significantly better” since the previous visit. [Id.]

On June 19, 2012, Plaintiff had another follow-up appointment for deep vein thrombosis wherein his physician noted his heart had “improved somewhat” but still had an ejection fraction of 25-30 percent. [AR 564] The echocardiogram indicated he would likely have “an ICD [implantable cardioverter-defibrillator] placed in the near future.” [Id.] The doctor ordered a liver biopsy, thinking it would be useful in the future to help inform the doctors on the necessity of a future heart transplant. [Id.] The following month, on July 5, 2012, Plaintiff stated he was “trying to exercise daily” by walking and that he “fe[lt] well.” [AR 561]

By October 25, 2012, Plaintiff reported no negative symptoms and was doing all of his activities of daily living (“ADLs”) including going to school at Red Rocks community college part-time. [AR 535] By February 2013, Plaintiff could climb two to three flights of stairs, walk two-to-three miles a day, and “sometimes work out for 30 minutes.” [AR 599] He was also doing vocational rehabilitation to pursue a career in woodwoorking, but complained he could not “think well.” [Id.] However, three months later, in January of 2013, Plaintiff called his doctor, stating he was willing to try warfarin “in hope[s] that his vertigo dilemma” would not return. [AR 605] He also said he was not tolerating Coumadin therapy well; he felt lethargic and dizzy. [Id.]

B. Mental Health

When Plaintiff was first hospitalized in December 2011, his memory was good, he was fully oriented, and he could follow simple commands. [AR 477] He was also taking anti-anxiety medication. [AR 401] On January 18, 2012, Plaintiff was noted to be taking Celexa and had anxiety, depression, and confusion with blood pressure titration. [AR 348]

When he returned to the hospital on February 20, 2012, his mood was much better and his anxiety was down. [AR 264-65, 523-24] He complained of symptoms consistent with attention deficit hyperactive disorder (“ADHD”). [Id.] The caregiver, a psychologist, noted Plaintiff had a history of anxiety and depression with obsessive-compulsive disorder traits, and past alcohol abuse, but he not had alcohol for three months. [Id.] Furthermore, the psychologist ruled out obsessive-compulsive disorder as well as generalized anxiety, but diagnosed him with early remission from alcohol dependance and inattentive ADHD. [Id.] He also noted Plaintiff had taken Paxil in the past but was currently taking Lexapro, which helped somewhat, but Plaintiff believed he needed something to treat his inattention and impulsivity. [Id.]

In March of 2012, a psychologist noted Plaintiff said he was “doing better” and had maintained sobriety for approximately five months. [AR 501] He told the psychologist he had recently become engaged to his girlfriend and was optimistic about his relationship and future life and had no other issues or concerns. [Id.] The doctor recommended a decrease in his Lexapro diagnosis and added Wellbutrin to assist with Plaintiff’s attention and concentration issues. [Id.] One month later, on April 16, 2012, Plaintiff returned to Denver Health’s behavioral health outpatient clinic and reported that a recent medication change worked well for his anxiety, he had “the best week [he could] recall in a long time, ” but he reported increasing concentration and memory issues and “brain fog.” [AR 493]

Several months later, beginning in October 22, 2012, Plaintiff began a course of psychotherapy at the University of Denver Graduate School of Psychology clinic with a student therapist under the supervision of a licensed psychologist. [AR 619, 623-644] These weekly sessions lasted through May of 2013. Plaintiff was diagnosed with major depressive disorder, recurrent, moderate. [AR 621] The student therapist assigned Plaintiff a global assessment of functioning score (“GAF”)[1] of 70. [Id.]

IV. Physical Medical Source Opinions

A. Treating Physicians

1. Lucy Esberg, M.D.

Dr. Esberg, a cardiologist at Denver Health, submitted a letter on Plaintiff’s behalf on March 14, 2013, stating that “[o]verall, [Plaintiff] has improved greatly, however, he may not reach normal physiology and functional class.” [AR 606] She also stated that Plaintiff “carries a diagnosis of non-ischemic dilated cardiomyopathy with an estimated ejection fraction of 30 [percent], ” and that his New York Heart Association is class II, meaning “he gets shortness of breath with exertion.” [Id.] In May of 2013 she conducted a Cardiac Medical Source Statement in which she noted that doctors diagnosed Plaintiff with a lifelong prognosis of “idiopathic dilated non-ischemic cardiomyopathy with heart failure.” [AR 607] The clinical findings and lab reports showed the patient had “persistently poor ejection fraction on echocardiogram with persistent functional limitations.” [Id.] She concluded that Plaintiff could walk five to six blocks without resting, stand less than two hours per day, lift ten pounds frequently, would be off-task 20 percent of the time, was limited in his ability to crouch/squat, climb stairs and ladders, and would need to take unscheduled breaks every three hours for approximately 15 minutes. [AR 608-610] Additionally, her notes indicate Plaintiff suffers from depression and anxiety which is “exacerbated by him being a young man with such a severe heart condition.” [AR 610]

2. David Ginosar, M.D.

On July 1, 2013, Dr. Ginosar, a cardiologist at Denver Health who had provided care for Plaintiff since January 2012, submitted a letter on Plaintiff’s behalf. [AR 618] As Plaintiff’s treating physician, he concluded that Plaintiff’s “ability to work is significantly reduced by his cumulative fatigue while working, ” resulting in great difficulty working more than four hours daily. [Id.] He came to this conclusion because Plaintiff carries “a rare, serious and debilitating diagnosis of non-ischemic cardiomyopathy in a young man, ” meaning his heart works improperly and that he becomes “somewhat short of breath with mild exertion.” [Id.] Furthermore, the doctor asserted that Plaintiff becomes physically ill after “moderate to severe exertion, ” requiring a two-to-three day recovery. [Id.]

B. Consultative Examining ...

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