United States District Court, D. Colorado
MARIA F. JIMENEZ, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION AND ORDER REVERSING COMMISSIONER’S
S. KRIEGER CHIEF UNITED STATES DISTRICT JUDGE
MATTER comes before the Court upon review of denial of
benefits by the Defendant, Commissioner of Social Security.
This matter was initiated by the Plaintiff, Ms. Jimenez,
without the assistance of counsel. She filed a letter in
support of her Complaint (#19). The Commissioner responded
with a brief (#23). Pursuant to D.C.COLO.LAttyR 15(f),
pro bono counsel entered an appearance on Ms.
Jimenez’s behalf, and supplemental briefing (#34, 35)
was filed. Having considered all of the documents filed,
including the record (#17), the Court now finds and concludes
Court exercises jurisdiction pursuant to 42 U.S.C.
§405(g). The Plaintiff filed applications in August 2010
for disability insurance benefits (DIB) and supplemental
security income (SSI) under Titles II and XVI of the Act. The
Administrative Law Judge (ALJ) conducted an administrative
hearing, and on April 26, 2012 issued an unfavorable decision
finding that the Plaintiff was “not disabled”
(hereafter, the Decision). The Appeals Council declined to
review the Decision (Tr. 1-3), making it final decision for
purposes of judicial review. See, 20 C.F.R. §
422.210(a). There is no dispute that this appeal was timely
Jimenez was born on May 7, 1976. At the time of the Decision,
she was 32 years old. She had limited education and had
worked as a pawn broker, order puller, photo finish lab
worker, and as an assistant retail sales manager at
Walgreens. She contends that a combination of mental
impairments (post-traumatic stress disorder, depression, and
anxiety) and physical impairments (migraine headaches,
hypertension, obesity, and lumbar back pain) prevent her from
her mental and physical impairments have origins in a series
of deaths of people close to Ms. Jimenez. In 2000, Ms.
Jimenez’s fiancée was murdered in front of her
while she was held hostage at gunpoint. After his murder, Ms.
Jimenez started experiencing depression, anxiety, and
post-traumatic stress disorder (PTSD). Two years later, Ms.
Jimenez’s brother passed away from AIDS. Then, in 2008,
her other brother was killed by a family member. Following
this third death, Ms. Jimenez’s mental impairments and
physical impairments began to severely affect her ability to
work. Ms. Jimenez became unable to work in April 2010.
Mr. Jimenez’s migraine headaches are the subject of
this appeal. Ms. Jimenez began experiencing headaches in
2000, but they became more numerous and more intense during
2010, occurring 3-5 times per week and accompanied by nausea,
photosensitivity, and sound sensitivity. In September 2010,
Ms. Jimenez sought medical treatment at Clinica Campesina.
Notes by treating physician, Dr. Carlos Brol, M.D., report
her complaints of severe headaches more frequently than 3-5
times per week with a pain intensity of 8-10 on a 10-point
scale. In November, he diagnosed the headaches as, Chronic:
Migraine NOS [with] intractable migraine.
diagnosis continued throughout Dr. Brohl’s treatment
notes and those of Dr. Rachel Miller, who took over Ms.
Jimenez’s care in 2011. Although migraine headaches
were not Ms. Jimenez’s only medical issue, they were a
repetitive source of concern and treatment. She consistently
and repetitively reported to her treating physicians, and
psychologist, Elizabeth Lowell-Tupa, Ph.D., that the
migraines occurred multiple times a week, seemed to get worse
as her blood pressure went up, and frequently were so severe
that she was photophobic, had to lie down, and could not
concentrate. Her medical records reflect an initial
prescription of Imitrex, but it did not prove effective.
Unable to afford more expensive abortive medication, Ms.
Jimenez resorted to over-the-counter analgesics, which were
examining consulting physician, Deborah Moore, M.D., included
migraines as a diagnosis in her report. She noted,
“[t]he claimant has migraines with classic symptoms and
is unable to afford abortive medications. She had one this
morning with nausea and vomiting but did not have a sensitive
reaction to a light shined in her pupil, although she was
wearing shades when I walked into the room. She did not
appear to be in any pain at this time.” Dr. Moore did
not opine as to the frequency or severity of the migraines,
recommending only that, “[t]he claimant has limitations
working around bring lights or excessive noise due to
disability hearing, Ms. Jimenez testified that she
experiences multiple debilitating migraines each week, but
can only afford over-the-counter medications. The ALJ posed
hypothetical questions to a vocational expert, including
whether an individual who is forced to miss one day of work
per week because of headaches would be able to perform
competitive work in the national economy. The vocational
expert responded by stating that such symptoms were
inconsistent with gainful employment.
The ALJ’s Decision
employed the standard five-step analysis. At Step 1 he found
that Ms. Jimenez met the insurance status requirements and
that she had not engaged in substantial gainful activity
after April 18, 2010. At Step 2, he found that she had severe
impairments - chronic headaches, anxiety disorder, PTSD,
depression, obesity, hypertension, and lumbar back pain. At
Step 3, he found that none of these singly, or in
combination, met or were the equivalent to one of the listed
impairments in 20 C.F.R. Part 404, Subpt. P, App. 1. At Step
4, the ALJ determined Ms. Jimenez’s had a residual
functional capacity (RFC) to perform light work, but was
limited to lifting and carrying 10 pounds frequently and 20
pounds occasionally, sitting or standing for six hours in an
eight-hour work day, avoid climbing ladders or scaffolds, not
work around open machinery, only be exposed to occasional
interactions with co-workers and supervisors, occasionally
stoop or kneel, not be exposed to complicated instructions,
not interact with the public, avoid work in sunlight, and
only be exposed to moderate noise, and that she could not
perform her past relevant work. At Step 5, he found that she
was able to perform other jobs in the national economy,
including merchandise marker and electronics accessories