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Brozovich v. Colvin

United States District Court, D. Colorado

July 19, 2016

HENRY E. BROZOVICH, JR., Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER DENYING REQUEST FOR RECONSIDERATION

          Marcia S. Krieger Chief United States District Judge.

         THIS MATTER comes before the Court on the Plaintiff Henry E. Brozovich Jr.’s appeal of the Commissioner of Social Security’s final decision denying his applications for Disability Insurance Benefits under Title II of the Social Security Act (SSA), 42 U.S.C. §§ 401-33, and Supplemental Security Income under Title XVI of the SSA, 42 U.S.C. §§ 1381-83c.

         I. Background

         Mr. Brozovich applied for both disability insurance benefits and supplemental income in 2012. In each application, he asserted that his disability began on October 1, 2011 as a result of intransigent back pain. His claims were initially denied. He filed a written request for a hearing before an Administrative Law Judge (ALJ), and a hearing was held on July 26, 2013. The ALJ denied benefits in a written decision (the Decision). The Appeals Council denied Mr. Brozovich’s request for review; thus, the Decision became the Commissioner’s final decision for purposes of judicial review. Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011). Mr. Brozovich filed a timely appeal to this Court.

         Oral argument was held on March 22, 2016, and the Court issued an Oral Ruling reversing the Commissioner’s decision and remanding for further administrative proceedings. But the Court stayed entry of judgment for 30 days pending a request for reconsideration by the Commissioner and supplemental briefing by the parties. The Commissioner filed a Supplemental Brief (#20) seeking reconsideration of the Court’s Oral Ruling. The Plaintiff filed a Response (#22) in opposition. The Court has considered all pleadings, supplemental briefing, and the record.

         Exercising jurisdiction pursuant to 42 U.S.C. § 405(g), the Court reconsiders, but affirms, its March 22, 2016 Oral Ruling. Supplementing its prior findings and conclusions with this opinion, the Court REVERSES the Commissioner’s decision to deny benefits AND REMANDS for further administrative proceedings.

         II. Standard of Review

         The Court reviews the Commissioner’s decision to determine whether the factual findings are supported by substantial evidence and whether correct legal standards were applied. Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000). This case does not turn on whether the record contains substantial evidence to support factual findings, but instead upon whether the Decision demonstrates application of the correct legal standard. If the Decision applies the wrong legal standard, or fails to clearly demonstrate application of the correct standard, it must be reversed. Glass v. Shalala, 43 F.3d 1392 (10th Cir. 1994).

         III. Material Facts

         Mr. Brozovich’s alleged disability is based upon pain arising from lumbar spinal degeneration. He worked for 36 years before filing his applications. While they were pending he tried to work at his job as a delivery truck driver, but due to what he characterized as unrelentingly pain, he was unable to work regularly. As a consequence, his earnings were insufficient to rise to the level of substantial gainful activity during 2011 and 2012.

         The ALJ determined at Step 2 that Mr. Brozovich had a severe impairment of degenerative disc disease of the lumbar spine (L/3/L5/S1), at Step 3 that it did not meet or equal any Listing, and at Step 4, that Mr. Brozovich had an RFC to perform the full range of light work although he could not work as a delivery driver. At Step 5, the ALJ found that the Medical-Vocational Guidelines directed a finding that Mr. Brozovich was disabled.

         Mr. Brozovich testified that while his applications were pending, he worked two to three days per week for five to six hours each day. He needed to lie down after work and recover on days that he did not work. When he had a bad day, he was bedridden for the day. He described experiencing severe and steady chronic pain in his lower back, which sometimes radiated down his legs. He described the pain as being at a level of 7 or 8 out of 10 (10 being the worst pain) on an average day while taking medication, and a 9 or 10 out of 10 on a bad day while taking medication. The medication made him tired. When he participated in a recommended rehabilitation program, it took him a month to recover. He was not able to sit for longer than 30 minutes at a time and was only able to lift about 30 pounds.

         Mr. Brozovich’s medical records reflect primary treatment from Dr. Krotchko beginning in May, 2011 and continuing through July, 2012 for constant, aching lower back pain. Dr. Krotcho’s initial examination showed full range of motion but back stiffness, and x-rays showed mild to moderate discogenic changes at L4-L5 and L5-SI. Dr. Krotchko examined Mr. Brozovich every few months; each time Mr. Brozovich reported that the pain was the same or worse. Dr. Krotcho employed a combination of approaches including prescription pain medication and muscle relaxants, physical therapy, and an MRI study (which revealed mild lower lumbar spine degenerative changes with tiny annular tears at L3-L5 but no cause for radiculopathy being seen). Over the course of Dr. Krotcho’s treatment, he observed deterioration in Mr. Bozovich’s condition and increasing complaints of pain accompanied by lumbar lordosis, back muscle spasm, decreased range of motion, bilateral lumber spinal and paraspinal muscle tenderness. His notes reflect that Mr. Brozovich’s back pain was “out of proportion” to x-ray and MRI findings and that his symptoms were worse despite home exercises and physical therapy. As a consequence, Dr. Krotcho referred Mr. Brozovich to an orthopedist, Greg P. Gutierrez, M.D.

         Dr. Gutierrez examined Mr. Brozovich and obtained new x-rays. The new x-rays also showed mild to moderate lower lumbar spine degenerative changes. Dr. Gutierrez diagnosed mechanical low back pain and recommended different exercise modalities, which Mr. Brosovich tried.

         After considering Dr. Gutierrez’ assessment, Dr. Krotchko diagnosed Mr. Bosovich as suffering from chronic musculoskeletal lumbrosacral pain that was caused or exacerbated by his job which required prolonged sitting. Using the form promulgated by the Social Security Administration that quantifies work-related functional abilities, Dr. Krotchko found that Mr. Brozovich could:

Lift/carry 21-50 pounds occasionally, 11-20 pounds frequently;
Sit 30-40 minutes at one time, three hours total;
Stand one hour at one time, two hours total;
Walk one hour at one time, two hours total;
Lie down/rest one hour per eight-hour workday;
Not workaround unprotected heights, moving mechanical parts, and extreme cold;
Occasionally work around humidity, wetness, dust, odors, fumes and pulmonary irritants, extreme cold or heat, and vibrations;
Frequently operate a motor vehicle;
Not crawl;
Occasionally climb stairs, ramps, ladders and scaffolds, stooping, ...

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