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Anglestein v. Colvin

United States District Court, D. Colorado

November 28, 2016

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


          Michael E. Hegarty, United States Magistrate Judge.

         Plaintiff Dorothy Anglestein appeals from the Social Security Administration (“SSA”) Commissioner's final decision denying her application for disability and disability insurance benefits (“DIB”), filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-433. Jurisdiction is proper under 42 U.S.C. § 405(g). The parties have not requested oral argument, and the Court finds it 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 the ALJ's decision and remands the matter to the Commissioner for further consideration.


         I. Procedural History

         Plaintiff seeks judicial review of the Commissioner's decision denying her application for DIB filed on October 22, 2012. [Administrative Record (“AR”) 315-316] After the application was initially denied on June 3, 2013 [AR 214-216], an Administrative Law Judge (“ALJ”) scheduled a hearing upon the Plaintiff's request for July 16, 2014 [AR 258-275]; however, the hearing was rescheduled for November 5, 2014 [AR 288-309]. At the hearing, the Plaintiff and a vocational expert testified. [AR 165-199] The ALJ issued a written ruling on November 21, 2014 finding Plaintiff was not disabled starting on July 7, 2011 because Plaintiff could perform her past jobs of insurance agent clerk, billing clerk, telephone solicitor, and mortgage clerk. [AR 158] The SSA Appeals Council subsequently denied Plaintiff's administrative request for review of the ALJ's determination on April 5, 2016, making the SSA Commissioner's denial final for the purpose of judicial review [AR 1-7]. Plaintiff timely filed her complaint with this Court seeking review of the Commissioner's final decision.

         II. Plaintiff's Alleged Conditions

         Plaintiff was born on November 22, 1953; she was 58 years old when she filed her application for DIB on October 22, 2012. [AR 315] Plaintiff claims she became disabled on July 7, 2011 [AR 333] and reported that she was limited in her ability to work due to multi-level disc degenerative disease, spinal stenosis, and depression.[1] [AR 337] Plaintiff filed a “Function Report” in tandem with her application, in which she explained that she was limited in her ability to work due to memory retention problems; inability to type; pain in her spine, legs, and hips from scoliosis, osteoarthritis, and osteoporosis; and loss of control of legs and bladder. [AR 365] She also noted she had trouble swallowing and her esophagus was “stretched twice.” [AR 372]

         The record indicates that Plaintiff had been a patient of Susan Dattilo, M.D. since at least August 5, 2010, at which time Plaintiff presented to an emergency room with lower back pain and identified Dr. Dattilo as her primary care provider. [AR 410] At that time, an imaging report revealed a “mild cortical irregularity at the sacrococcygeal junction consistent with the given clinical history of prior coccyx fracture.” [AR 415] Later, on November 22, 2010, Dr. Dattilo described Plaintiff as “a previous patient from Oak Springs Family Medicine” on a record from the Matthews-Vu medical office. [AR 540] In her report, the doctor described Plaintiff as having had “an injury to her back and neck many years ago, ” which led to “a history of chronic neck, upper back, and lower back pain and muscle spasms” for which she was “being prescribed daily narcotics for pain control.” [Id.]

         In April 2011, Dr. Dattilo ordered MRI exams of the Plaintiff's pelvis and lumbar spine; the tests indicated a levoscoliosis, multiple degenerative disc disease (disc protrusions and foraminal narrowing), and trochanteric bursitis. [AR 524] In the coming weeks and months, Plaintiff's pain worsened, so Dr. Dattillo recommended Plaintiff stop chiropractic treatments and referred her to a neurosurgeon. [AR 515] Plaintiff presented to Sana U. Bhatti, M.D. on July 7, 2011, who diagnosed Plaintiff with lumbar spinal stenosis, degenerative disc disease, and lumbar and sacral spondyloarthritis, and recommended conservative pain management first before trying surgery to alleviate pain. [AR 422-423] Plaintiff received epidural injections in her spine and underwent nerve conduction studies, which were normal. [AR 418, 569] In November 2011, an MRI of Plaintiff's cervical spine indicated degenerative changes and foraminal stenosis in the lower cervical spine. [AR 478]

         Dr. Dattilo referred Plaintiff for another MRI of her lumbar spine in July 2012, which indicated interval progression of T12-L1 degenerative disc disease and mild lumbar dextroscoliosis [AR 465], and the doctor referred Plaintiff to see a neurosurgeon, Chad, Prusmack, M.D., in August 2012, who determined the Plaintiff would “need a wide laminectomy and a full facetectomy, ” which would “result in the subsequent need for a fusion.” [AR 584] Plaintiff underwent these procedures on September 18, 2012 [AR 429-430]; Dr. Prusmack “comment[ed] that there was quite severe compression; specifically, actually of the L5 nerve root and there was a far lateral component to this.” [AR 582] On October 31, 2012, Dr. Dattilo noted that Plaintiff was “doing much better overall, ” was “in much less pain and her range of motion in her back and overall ability to ambulate [was] greatly improved” following the spinal fusion. [AR 630]

         After reviewing an MRI performed on Plaintiff on December 12, 2012, Dr. Prusmack determined that she was healing well from the fusion, but noted that an MRI of Plaintiff's cervical spine the previous year revealed “significant cord compression, ” so ordered a new MRI performed December 28, 2012, which revealed “slightly progressive degenerative changes of the cervical spine when compared to prior study.” [AR 581, 677] In early 2013, Plaintiff complained of right shoulder pain and underwent a “shoulder arthroscopy with subacrominal decompression and distal clavicle excision” in June 2013. [AR 869-70; 879] Three months after the procedure, the doctor diagnosed Plaintiff with bicipital tendonitis, treated her with an injection, and by November 11, 2013, Plaintiff was “doing much better with her shoulder.” [AR 768] There are no other records from 2013 concerning Plaintiff's lumbar or cervical spinal pain.

         Notably, on January 4, 2014, Christopher J. Malinky, M.D., who had been treating Plaintiff for pain management since February 15, 2013 [AR 580], addressed a letter to Plaintiff informing her that he would no longer treat her after learning that she “breached” her narcotic agreement by receiving prescription narcotics from both Dr. Malinky and Dr. Dattilo “for some time.” [AR 815] The next record from January 30, 2014 indicates Plaintiff presented to Alexios Constantinides, D.O. at Front Range Medical Arts “to establish” a “new PCP” because her “physician [was] moving.” [AR 852] Plaintiff continued to see Dr. Constantinides for back and leg pain and other health issues; however, on July 10, 2014, [2] she met with Dr. Dattilo to request completion of “disability paperwork.” [AR 887] Dr. Dattilo partially completed a “Medical Opinion Regarding Ability to Do Work-Related Activities” form for Plaintiff's counsel, in which she noted, inter alia, that Plaintiff could lift and carry less than 10 pounds occasionally and frequently; could sit, stand, and walk during a normal 8-hour workday for two hours at a time; would need to lie down 3-4 times per day; and experienced weakness and numbness in her hands and legs. [AR 817-820] Dr. Dattilo concluded that Plaintiff was limited to less than a full range of sedentary work. [AR 821]

         On October 16, 2014, Plaintiff saw Kenneth P. Finn, M.D. as a referral from Dr. Constantinides for a lidocaine injection [AR 912], which he performed on October 29, 2014 [AR 911]. Dr. Finn also ordered images of Plaintiff's lumbar spine, which were performed on November 17 and 18, 2014. [AR 915-918] Essentially, the images revealed there was “no evidence of hardware loosening or fracture” and a “solid interbody fusion, ” but also “dextroconvex scoliosis of the thoracolumbar junction with the apex at ¶ 12-L1"[3] and “moderate to advanced degenerative changes of the disc space at this level.” [See id.; see also AR 917 (“[t]he dextroscoliosis appears more pronounced when compared to a prior study dated 6/4/2010.”)]

         The remainder of the medical record contains records from Peak View Behavioral Health Center for the period January 19, 2015 through January 29, 2015, at which time Plaintiff was treated for depression and suicidal thoughts. Because no mental impairments are challenged in this case, the Court will not consider these records.

         III. Hearing Testimony

         On November 5, 2014, Plaintiff and a vocational expert, Douglas Pruding, testified at the hearing. [AR 165-199] Plaintiff testified that she was “let go” from her job at Time Warner Cable in 2010 for failing to meet sales requirements because of her need to get up and move due to back pain; at the time of the hearing, Plaintiff's back would “freeze up” once or twice daily so that she could not move and the pain, lasting up to 10 minutes, was “very sharp”; after an episode, Plaintiff would have to rest for 10-15 minutes; she could sit for 40 minutes before needing to get up and move; she needed to lie down at least three times per day for up to 30 minutes; she occasionally went to the grocery store, but could not walk from one end to the other without resting; she had been using a cane for two years for balance issues; she could lift and carry 10 pounds, but could not bend over to pick up something from the floor; she felt weakness in her hands and had no feeling in her fingertips for the previous four years; she could not lift more than 5 pounds over her head with her right hand; she had difficulty seeing after cataract surgery; her neck problems had steadied; and she had recently had injections in her back that were alleviating her pain. [AR 169-191]

         The ALJ then turned to the vocational expert, Mr. Pruding, who testified that an individual with Plaintiff's age, experience and education-and limited to a full range of light work with no ladders, scaffolds, or unprotected heights, and occasional bending, squatting, kneeling, foot or leg controls, and over-chest-level work-could perform all of the Plaintiff's past jobs of insurance clerk, billing clerk, mortgage clerk, temporary clerk, and telephone solicitor. [AR 192-193] In addition, Mr. Pruding attested the same individual with the same limitations except needing to remain sedentary could perform all of the past jobs except the temporary clerk. [AR 193-194] With the added limitations of needing to get up and move every two hours or needing to be absent more than three times per month, the individual could not perform any of the past jobs. [AR 194] He also testified that the inability to lift anything, bend at the knees, and type would preclude the past jobs. [AR 196-198]

         The ALJ issued an unfavorable decision on November 21, 2014. [AR 147-159]


         I. SSA's Five-Step Process for ...

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