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Dunlap v. Colvin

United States District Court, D. Colorado

September 28, 2016

TAMMY L. DUNLAP, Plaintiff,


          Nina Y. Wang United States Magistrate Judge.

         This civil action arises under Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 401-34 (2012) for review of the Commissioner of Social Security's final decision denying Plaintiff Tammy L. Dunlap's (“Plaintiff” or “Ms. Dunlap”) application for Disability Insurance Benefits (“DIB”), and is before the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). [#16, dated December 3, 2015].[1] After carefully considering Plaintiff's Opening Brief [#18], Defendant's Response Brief [#19], Plaintiff's Reply Brief [#20], the entire case file, the Administrative Record, and the applicable case law, this court respectfully REVERSES the Commissioner's decision and REMANDS for further proceedings.


         This case arises from Plaintiff's application for DIB based on bipolar disorder, back impairment, migraines, obesity, depression, and hiatal hernia. [#12-5 at 129; #12-6 at 150; #18 at 1]. Ms. Dunlap's extensive medical record indicates a significant history of both mental and physical ailments. Beginning with her mental ailments, Ms. Dunlap was initially diagnosed with manic depressive disorder in 1991, [#12-2 at 39; #12-9 at 403], and diagnosed with anxiety and bipolar disorder in 2008, following a mental breakdown that required hospitalization at Porter Adventist Hospital in Denver, Colorado. [#12-2 at 39; #12-9 at 403]. In addition, Ms. Dunlap's medical records indicate that the she was diagnosed with varying degrees of migraine headaches: Migraine without aura in December 2005; Migraine with aura and without status migrainous, not intractable[2] in March 2006; and Migraine without status migrainous, not intractable in August 2009. See generally [#12-8 at 287, 235, 278, 290, 294, 397; #12-12 at 695, 707-710, 807-810, 822].[3]

         Physically, Ms. Dunlap is five feet and seven inches tall, weighing approximately 220 pounds-a Body Mass. Index (“BMI”) of 30.35.[4] See [#12-8 at 286, 297; #12-9 at 360, 365, 374]. In 2002, however, Plaintiff had gastric bypass surgery, and over the following two years dropped her weight from 317 pounds to 138 pounds, but since 2008, Plaintiff has regained a majority of the lost weight. See [#12-2 at 40-41; #12-8 at 244-245]. In 2010, Plaintiff was treated for chronic foot pain, [#12-7 at 193], and a March 2011 X-ray revealed posterior and plantar calcaneal osteophytes and plantar grade navicular cuneiform joints. [#12-8 at 231-234]. In August 2011, Plaintiff was again treated for continued foot pain, and diagnosed with plantar fascial fibromatorsis, achilles tendinitis, and leg pain. [Id. at 238-239]. Due to continued pain and the failure of conservative treatments, Ms. Dunlap underwent a “gastrocnemius recession and reset posterior heel spur with re-attached achilles tendon as needed” on October 26, 2011. [Id. at 256-276 (detailing the surgery procedures, as well as post-operative rehabilitation plans].

         In addition to chronic foot pain, Plaintiff also alleges severe physical impairments because of her back pain. [#12-6 at 150-151; #12-10 at 484 (noting her back pain)]. Ms. Dunlap presented to the Emergency Room (“ER”) on September 1, 2011, complaining of severe back pain, stemming from a February 2011 spinal lumbar puncture, with bending and lifting exacerbating the pain. [#12-8 at 235, 240]. In May 2012, Ms. Dunlap visited her primary care physician, Ms. Madelyn S. Palmer, M.D., because of worsening back pain, and indicated that she received injections of pain medication in March of that year that had now worn off. [#12-9 at 380-381]. Then, on August 9, 2012, and again on November 5, 2012, Ms. Dunlap underwent additional procedures for vertebrae joint injections with the use of fluoroscopic guidance to help ease her pain. [#12-8 at 289-93 (detailing the August procedure), 307-310 (detailing the November procedure)]. Also in 2012, Ms. Dunlap began complaining of abdominal pain and nausea. [Id. at 296]. A computerized tomography (“CT”) scan revealed that Ms. Dunlap suffered from a hiatal hernia, and on October 4, 2012, had surgery to repair this issue. [#12-7 at 211-212; #12-8 at 296, 298-300 (surgery procedural notes), 304-307 (pre-surgery report)]. Unfortunately, the surgery did not alleviate Ms. Dunlap's symptoms. See [#12-8 at 311]. Ultimately, Plaintiff alleges that the combination of her ailments and the side effects of her medications rendered her unable to work. See [#12-6 at 173 (explaining that her medications and ailments render her an “[un]reliable employee”)].

         On September 24, 2012, Ms. Dunlap filed an application for DIB under Title II of the Act, alleging disability beginning on January 1, 2011. [#12-3 at 65; #12-5 at 129; #12-6 at 150; #18 at 1]. Prior to filing for DIB, Ms. Dunlap worked as an Administrative Assistant for various companies for approximately eight years, she worked as a Recruiter for approximately a year and, most recently, she worked as a licensed Home and Hospital Health Care Certified Nurse's Assistant (“CNA”) for four years. [#12-2 at 55; #12-6 at 151-152, 158]. As an Administrative Assistant and Recruiter, Ms. Dunlap sat for a majority of her day and did not have to lift more than ten pounds frequently. [#12-6 at 162-166]. Conversely, Ms. Dunlap's work as a CNA was much more strenuous, requiring her to kneel, crouch, and write for seven-plus hours per day; to walk, stand, and handle large objects for three-plus hours per day; and to lift between 50-100 pounds frequently. [Id. at 159-161]. However, due to her physical and mental ailments, most notably her frequent migraine headaches, Ms. Dunlap alleges that she can no longer perform substantial gainful activity. See [#12-2 at 16, 35; #12-6 at 150-151, 172, 173, 188-189].

         Ms. Dunlap's application was denied at the initial determination stage on April 5, 2013. [#12-2 at 14; #12-3 at 73; #12-4 at 78-80]. On May 15, 2013, Ms. Dunlap requested a hearing before an Administrative Law Judge. [#12-4 at 81-83]. Administrative Law Judge Mark R. Dawson (“ALJ”) held a hearing on March 3, 2014, [#12-2 at 14, 34], at which attorney James Reed represented Ms. Dunlap. [Id. at 87; #12-4 at 75-77, 127].

         At the hearing, Ms. Dunlap testified that her primary reasons for not working were her migraine headaches and her bipolar disorder, in addition to “several other factors as well.” [#12- 2 at 35]. Regarding her migraines, Ms. Dunlap testified that she suffers from “at least two a week, ”[5] with the longest lasting four days. [Id. at 37-38]. She continued that she is very sensitive to light, which is one of her main migraine triggers, and that her migraines interfere with her ability to perform daily tasks. [Id. at 37, 44]. Specifically, Ms. Dunlap explained that her husband and 29 year-old daughter handle the grocery shopping, and when she is “down with a migraine or something, ” her daughter does all the “heavy things in the house, ” which includes caring for Ms. Dunlap's 5 year-old granddaughter and 3 year-old grandson. [Id. at 44, 50]. In response to the ALJ's question regarding Ms. Dunlap's absences from work because of migraine issues, Ms. Dunlap responded, “I was missing probably about 10 days a month [as a Home Health Care CNA]. When I was working in the hospital environment . . ., I actually had to quit working there because I was calling out too much, . . . two to three times a month.” [Id. at 54].

         As to treatment for her migraines, Ms. Dunlap testified that she has visited six different neurologists, with the most recent neurologist prescribing the preventative medication Verapamil, [Id. at 36]; however, no diagnostic examinations have revealed any abnormalities. [Id. at 52]. Ms. Dunlap testified further that she frequents her “Family Medical Clinic” for Demerol and Phenergan injections to ease her pain, and that she seeks intravenous pain medication from the ER at least “one or two times a week, sometimes more.” [Id. at 36]. She testified that these treatments provide a few days of relief; however, her most recent treatment provided only four hours of relief before she “had to go get something else.” [Id. at 38].

         With respect to her other ailments, Ms. Dunlap testified that her bipolar disorder “affects her brain, ” and that she experiences “depressive cycles” approximately three to four days a week and will not leave her home during these cycles. [Id. at 39, 50-51]. She also testified about her weight gain since 2008 after losing nearly 200 pounds, following her 2002 gastric bypass surgery, [Id. at 40-42], as well as her foot, knee, back, and neck issues-all of which contribute to her present state of disability. [Id. at 45-48]. Because of her physical and mental ailments, Ms. Dunlap testified that she could no longer hike and climb mountains, or exercise at the gym or, more importantly, continue her work as a CNA. [Id. at 44-45, 51]. Similarly, Ms. Dunlap testified that her current impairments negatively affect her balance, allow her to sit for only thirty minutes before standing, and limit her walking to “a couple blocks.” [Id. at 47-49].

         Martin Rauer, a Vocational Expert (“VE”), testified at the hearing. [Id. at 55-58]. The VE testified that Ms. Dunlap's past job experience included a nurse aide, a specific vocational preparation (“SVP”)[6] level four medium exertion job; a recruiter, an SVP level six sedentary job; a receptionist (a temporary position), an SVP level four sedentary job; a secretary, an SVP level six sedentary job; and a home attendant, an SVP level three medium exertion job. [Id. at 55].[7]Both the ALJ and VE agreed that Ms. Dunlap could not perform her previous relevant work activities based on her current ailments. [Id. at 57].

         Accordingly, the ALJ directed a hypothetical to the VE based on the Disability Determination Services' (“DDS”) evaluation to determine whether jobs existed in the national economy for a person who was:

1. a person “closely approaching advanced age, ” with a high school education and some years of college, [8] and who had a similar work background as Plaintiff;
2. a person who can perform a limited range of light work activity;
3. a person who has a moderate limitation in the ability to concentrate, which precludes semi-skilled or skilled work activity;
4. a person who has a moderate social impairment, which precludes work in which public interaction is a primary component; and
5. a person who has a moderate decompensation impairment, which causes her to miss up to one workday per month.

[Id. at 56]. The VE testified that positions “typically void of significant public contact” include a small products assembler, a machine operator, as well as an electronics worker-all of which are SVP level two light jobs. [Id. at 57]. The ALJ then asked what amount of absenteeism would preclude full-time, long-term employment, to which the VE responded, “My break point is usually at about one and a half days per month. Two at the most would no longer be acceptable by most employers for maintaining employment.” [Id. at 58]. Neither the ALJ, nor Mr. Reed questioned the VE further. [Id. at 58].

         The ALJ issued his written decision on March 24, 2014. [Id. at 14-27]. The ALJ concluded that Ms. Dunlap last met insured status requirements for DIB on March 31, 2013, that she did not engage in substantial gainful activity during the period under review, and that she had seven severe impairments. [Id. at 16]. Further, the ALJ found that Plaintiff had the RFC to perform light work, with the limitations included in the hypothetical to the VE at the hearing, and that jobs existed in significant numbers in the national economy that Plaintiff could perform. [Id. at 18, 26]. For this reason, the ALJ denied Ms. Dunlap's application. [Id. at 26-27].

         Ms. Dunlap requested a review of the ALJ's decision, which the Appeals Council denied on July 29, 2015. [Id. at 1-5]. The ALJ's order thus became the final decision of the Commissioner. 20 C.F.R. § 404.981; Nielson v. Sullivan, 992 F.2d 1118, 1119 (10th Cir. 1993) (citation omitted). Ms. Dunlap filed this action on September 28, 2015, [#1], invoking this court's jurisdiction to review the Commissioner's final decision under 42 U.S.C. § 1383(c)(3).


         In reviewing the Commissioner's final decision, the court is limited to determining whether the decision adheres to applicable legal standards and is supported by substantial evidence in the record as a whole. Angel v. Barnhart,329 F.3d 1208, 1209 (10th Cir. 2003); Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996) (citation omitted). The court may not reverse an ALJ simply because it may have reached a different result based on the record; the question instead is whether there is substantial evidence showing that the ALJ was justified in his decision. See Ellison v. Sullivan,929 F.2d 534, 536 (10th Cir. 1990). “Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Hackett v. Barnhart,395 F.3d 1168, 1172 (10th Cir. 2005)). “It requires more than a scintilla, but less than a preponderance.” Id. Moreover, “[e]vidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992) (citation omitted). “[The court will] not reweigh the evidence or retry the case, [but must] ‘meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been ...

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