United States District Court, D. Colorado
TAMMY L. DUNLAP, Plaintiff,
CAROLYN W. COLVIN, Defendant.
MEMORANDUM OPINION AND ORDER
Y. Wang United States Magistrate Judge.
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]. 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.
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 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,
Ms. Dunlap is five feet and seven inches tall, weighing
approximately 220 pounds-a Body Mass. Index
(“BMI”) of 30.35. 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
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
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].
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].
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, ” 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].
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].
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
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”) 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].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].
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,
who had a similar work background as Plaintiff;
2. a person who can perform a limited range of light work
3. a person who has a moderate limitation in the ability to
concentrate, which precludes semi-skilled or skilled work
4. a person who has a moderate social impairment, which
precludes work in which public interaction is a primary
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].
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].
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. §
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 ...