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Bradley v. Colvin

United States District Court, D. Colorado

January 4, 2017

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


          Michael E. Hegarty, United States Magistrate Judge.

         Plaintiff Kristen Bradley appeals from the Social Security Administration (“SSA”) Commissioner's final decision denying her application for disability and disability insurance benefits (“DIB”), originally filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-433, and her application for supplemental security income benefits (“SSI”), filed pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383c. 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 applications for DIB and SSI benefits filed on December 28, 2011. [Administrative Record (“AR”) 265-272] After the applications were initially denied on April 27, 2012 [AR 151-156], an Administrative Law Judge (“ALJ”) scheduled a hearing upon the Plaintiff's request for May 8, 2013 [AR 166-178], at which the ALJ ordered postponement of the hearing to allow Plaintiff time to seek legal counsel and supplement the record [AR 103-112]. The next hearing was held on December 10, 2013, at which Plaintiff was represented by counsel, and the Plaintiff and a vocational expert testified. [AR 63-101] The ALJ issued a written ruling on January 13, 2014 finding Plaintiff was not disabled starting on December 14, 2011 because considering Plaintiff's age, experience, and residual functional capacity, she could perform jobs existing in significant numbers in the national economy. [AR 130-146] After Plaintiff appealed the decision, the SSA Appeals Council remanded the matter to the ALJ saying “. . . the established residual functional capacity does not adequately identify or articulate functional limitations consistent with the above-referenced severe impairment of bilateral carpal tunnel syndrome.” [AR 148] Accordingly, the Appeals Council ordered the ALJ on remand to

• Obtain additional evidence concerning the claimant's impairment in order to complete the administrative record in accordance with the regulatory standards regarding consultative examinations and existing medical evidence (20 CFR 404.1512-1513 and 416.912-913). The additional evidence may include, if warranted and available, consultative examinations and medical source statements about what the claimant can still do despite the impairment.
• Give further consideration to the claimant's maximum residual functional capacity during the entire period at issue and provide rationale with specific references to evidence of record in support of assessed limitations (Social Security Ruling 96-8p).
• If warranted by the expanded record, obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base (Social Security Ruling 83-14). The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The Administrative Law Judge will ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy (20 CFR 404.1566 and 416.966). Further, before relying on the vocational expert evidence the Administrative Law Judge will identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles (DOT) and its companion publication, the Selected Characteristics of Occupations (Social Security Ruling 00-4p).

         [AR 148-149] On remand, the ALJ held another hearing on April 8, 2015 at which the Plaintiff and a vocational expert, Ms. Dunn, testified. [AR 31-55] Once again, the ALJ issued an unfavorable decision [AR 13-30], and Plaintiff appealed the decision. On February 18, 2016, the SSA Appeals Council denied Plaintiff's administrative request for review of the ALJ's determination, making the SSA Commissioner's denial final for the purpose of judicial review [AR 1-6]. See 20 C.F.R. § 416.1481. 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 May 16, 1967; she was 44 years old when she filed her applications for DIB and SSI on December 28, 2011. [AR 304] Plaintiff claims she became disabled on December 14, 2011 [id.] and reported that she was limited in her ability to work due to back problems, neck problems, sciatic pain in both legs, numbness in both hands, bilateral elbow pain, chronic headaches, and restriction of movement in her right hand. [AR 308] Plaintiff filed a “Function Report” in tandem with her application, in which she explained that she was limited in her ability to work because she could “not bend over without se[vere] back pain[;] standing for any length of time causes legs to start aching[, ] feet tingling and hands to go numb[, and] neck to ache and headaches.” [AR 314] She also stated she could “walk 200 ft. w/out stopping but then [she had] to wait a few min[utes] before [she came] back.” [AR 319]

         The record indicates that on May 1, 2008, Plaintiff presented to Mercy Regional Medical Center (“Mercy”) complaining of “chronic hip and back pain”; Plaintiff reported that she “fell approx[imately] 10 y[ea]rs ago.” [AR 467] She also reported “increasing [symptoms] over past 2 mo[nth]s[;] nothing seems to relieve pain.” [Id.] An x-ray of Plaintiff's lumbar spine revealed “[m]ild degenerative changes including disc disease L4-L5 and L5-S1” [AR 371], and an x-ray of Plaintiff's left hip was “normal” [AR 483]. Two years later, on July 15, 2010, Plaintiff presented to Mercy Health Services Clinic “to establish care” and for “ongoing chronic low back pain.” [AR 469] The provider diagnosed Plaintiff with “chronic lumbar radiculopathy” and prescribed Neurontin for pain. [AR 470] Plaintiff returned to the clinic on January 11, 2012, complaining of back pain and a “multitude of body pains.” [AR 471] Plaintiff reported she “really does believe that pot helps her manage her pain” and that she “smokes 3 joints/day.” [Id.] The provider diagnosed degenerative lumbar and cervical disc disease with right hand arthritis and joint pain, and with Plaintiff's consent, the provider prescribed Tramadol for her pain. [AR 472, 475]

         On March 17, 2012, Plaintiff presented for a consultative examination with Kimberly Jackson, D.O. [AR 372-376] Plaintiff reported that she could perform daily activities of bathing, dressing, driving, cooking, and cleaning, and she denied any “illicit drug use.” [AR 372-373] After a thorough physical examination, Dr. Jackson diagnosed Plaintiff with bilateral sciatica, left shoulder rotator cuff pain, cervicalgia, and tension headaches, and found Plaintiff could stand and walk for a total of 4 hours, and could sit for a total of 2 hours, in an 8-hour work day; could occasionally bend, stoop, squat, and twist, and could frequently lift and carry approximately 30 pounds; and could occasionally negotiate ladders and stairs. [AR 376]

         On January 10, 2013, Plaintiff presented to Southwest Colorado Spine and Musculoskeletal Center for pain in her back, legs, shoulders, and neck. [AR 412] Plaintiff reported that her pain was constant, stabbing, and burning and she was taking no medication. [AR 413-414] She also stated that she used “pot, ” was “unemployed, ” and was “applying for disability.” [AR 415] After a physical examination, David R. Silva, D.O. determined a “probable left L5-S1 disc protrusion with left L5 radicular symptoms” and ordered an MRI. [AR 402-403] The MRI, performed January 17, 2013, revealed “moderate degenerative disc [disease] at the L5-S1 level with a large eccentric protrusion posteriorly right greater than left which narrows both foramen at the L5-S1 level but also captures the traversing right and left S1 nerve roots.” [AR 381, 393] On February 7, 2013, Dr. Silva recommended that Plaintiff undergo a “nerve root block to be followed by physical therapy” and “if her symptoms continue we may need to pursue surgical options.” [AR 394] Thus, on February 13, 2013, Plaintiff was admitted to the Animas Surgical Hospital for a “bilateral L5-S1 selective nerve root block.” [AR 386]

         On April 12, 2013, Plaintiff returned to Mercy reporting to Nurse Practitioner Rosemary Fleming that the nerve block procedure completely relieved her pain, but once the anesthetic wore off, the pain returned and felt worse; she also reported that the physical therapy clinic would not take her insurance. [AR 492-493] After conferring with Dr. Silva, NP Fleming prescribed Hydrocodone for pain and referred Plaintiff to a different physical therapy clinic that would accept her insurance. [AR 494] Although Plaintiff denied use of “recreational drugs, ” her “tox screen” showed positive for cocaine and THC. [AR 389, 494]

         An MRI of Plaintiff's cervical spine on July 1, 2013 revealed a “C5-C6 left paracentral disc protrusion with neural compression.” [AR 398, 425] Plaintiff presented to Robert S. Davis, M.D. at Southwest on July 9, 2013 for an examination following her complaints of neck and upper extremity pain, numbness, and tingling. After a physical examination, Dr. Davis found Plaintiff had cervical stenosis, radiculitis, myelopathy, and pain, and ordered further x-rays and an EMG Nerve conduction study. [AR 425-426, 428] Dr. Davis reviewed the results of these tests with Plaintiff on July 24, 2013 at which time he recommended conservative treatment for Plaintiff's carpel tunnel syndrome, and surgery for her cervical stenosis; Plaintiff agreed. [AR 434-435] The surgery was performed on August 12, 2013 and the Plaintiff stated she was “pleased” with the results on August 22, 2013 when she met with Dr. Davis. [AR 466]

         Plaintiff saw Dr. Davis next on February 27, 2014 complaining of “returning pain, headaches, and bilateral upper extremity pain.” [AR 510] An x-ray of Plaintiff's cervical spine revealed nothing unusual, so the doctor ordered an MRI and another EMG nerve conduction study. [AR 508-509] Dr. Davis discussed the test results with Plaintiff on March 26, 2014, saying the MRI showed only post-operative degenerative changes but the study revealed bilateral carpal tunnel syndrome and a left ulnar/cubital tunnel syndrome; Dr. Davis suggested both conservative treatment and surgery for the syndromes, and Plaintiff said she would return if and when she wished to proceed with surgery. [AR 506]

         On May 5, 2014, at the Plaintiff's counsel's request, a physician with “12 years experience evaluating Social Security claimants” reviewed Plaintiff's medical records and concluded there were “five possible ways to find in favor for the claimant” and that Plaintiff “clearly is disabled and the primary question really is onset.” [AR 514-517]

         Plaintiff presented to NP Fleming on August 1, 2014, seeking completion of “Med-9 disability form, ” complaining of back pain, and requesting a referral to “Spine CO.” [AR 555-556] NP Fleming noted, “I don't think she is permanently disabled, ” “[s]he is ... independent in ADL's [activities of daily living], ” and “[s]he says she has seen a disability physician who has told her she is disabled.” [AR 556]

         All subsequent medical records concern treatment for shoulder pain, plantar fascial fibromatosis, H pylori infection, and hepatitis C, none of which are at issue in this case.

         III. Hearing Testimony

         At a hearing on May 8, 2013, Plaintiff appeared pro se. [AR 103-112] The ALJ discussed with the Plaintiff the scope of the records produced and the benefits of having a representative at the hearing. [Id.] The Plaintiff requested a continuance to allow her to retain counsel and supplement the record, if necessary. [Id.] The hearing was postponed to December 10, 2013 at which the Plaintiff (who appeared with counsel) and a vocational expert, Jammie Massey, testified. [AR 63-101] Before taking testimony, the ALJ asked to confirm first that the disability onset date was amended from October 31, 2009 to December 14, 2011 and, second, that the amendment mooted Plaintiff's claim for DIB benefits under Title II. [AR 66-68] Plaintiff's counsel confirmed both points and the hearing proceeded on Plaintiff's claim for SSI under Title XVI.

         Plaintiff testified that she finished the 11th grade and never got her GED; she had been having difficulty with her back, neck, left shoulder, and sciatica; she could sit in a recliner for two hours at a time (30 minutes in an office chair), stand for 5-10 minutes at a time, and walk about 100 feet without stopping; she could dress herself with some difficulty (wore no clothes with buttons);she could lift nothing from the ground and a gallon of milk from a table; she was separated and living with a roommate who was on disability; she had no hobbies except television, she no longer walked for exercise, and drove a vehicle; she drank occasionally, smoked marijuana twice daily, and did cocaine once a year; she was seeing no mental health provider; her work history started in 1998 as a bartender and her longest job was as a roofer; she did her own laundry (one load every other week), shopped for groceries (15 minutes at the most), cleaned the house (vacuumed for five minutes once a week), cooked, and washed the dishes (5 to 7 minutes); the pain in her spine aches sometimes and stabs sometimes; surgery on her neck did not help with pain, so she was not sure about having surgery on her back; her hands went numb three times per day after using them; she had injections in her spine and tried narcotic medications for back pain, but it did not work; the only thing that worked for her pain was marijuana; she could not grasp items for very long without a “nerve jolt”; and, she got only 5-6 hours of sleep per night. [AR 68-91]

         The ALJ then turned to the vocational expert, Ms. Massey, who testified that an individual with Plaintiff's age, experience and education and the following limitations -

this individual could only lift or carry up to 10 pounds frequently and 20 pounds occasionally. This individual would require a sit-stand option while remaining at the work station, meaning that the individual could sit or stand at will while performing assigned duties.
This individual could stand or walk with normal breaks for a total of six hours in an eight-hour work day. The individual could sit with normal breaks for a total of six hours in an eight-hour work day. This individual could perform pushing and pulling motions with ...

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