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Fritz v. Colvin

United States District Court, D. Colorado

January 18, 2017

Beth M. Fritz, Plaintiff/Appellant,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant/Appellee.



         Plaintiff-Appellant Beth Fritz appeals the final decision of the Acting Commissioner of Social Security (“Commissioner”) denying her application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). Ms. Fritz claims she has been unable to work since April 2009, due to severe arthritis in her back with bone spurs, bipolar mood disorder, cognitive disorder, anxiety, chronic obstructive pulmonary disease, and leg and foot pain. Her impairments resulted in her being homeless for several years, and it is only through the financial support of her Uncle, John Staunton who is himself receiving disability benefits, that Ms. Fritz has a place to live and has been able to pursue some treatment for her conditions. The Commissioner initially denied her application in 2011, and since then, Ms. Fritz has endured an additional five years of litigation regarding her claim.

         Ms. Fritz now challenges the ALJ's decision, arguing she erred by improperly determining Ms. Fritz's residual functional capacity (RFC) and by failing to meet the Commissioner's burden of production, and proof, that Ms. Fritz had the capacity to work in positions that exist in significant numbers in the national economy. For the reasons stated below, I REVERSE, [1] and REMAND the case to the Commissioner for an immediate award of benefits.


         Plaintiff applied for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) on September 22, 2009, asserting a disability onset date of April 17, 2009, due to arthritis in her back with bone spurs, bipolar disorder, manic depression, COPD, and leg and foot pain. (R. 255.) As with the majority of all initial disability applicants, Ms. Fritz's initial claim was denied.

         After an initial hearing held in February 2011, Administrative Law Judge (ALJ) William Musseman rejected Ms. Fritz's disability claim at step four of the five-step sequential evaluation.[2] In May of 2012, the Appeals Council remanded the case to the ALJ for a new hearing and decision. After a second hearing held in September 2012, the ALJ again denied Ms. Fritz's disability claim at step five. In February 2013, the Appeals Council denied review of Ms. Fritz's claim, and thus the ALJ's second decision became the final decision subject to judicial review. In May 2013, Ms. Fritz sought review by this Court, but before briefing was complete the Commissioner moved for a Sentence 4 remand back to the agency, which motion was granted. After a third hearing in May 2013 before a new ALJ, Kathryn D. Burgchardt, Ms. Fritz's disability claim was again denied at step five.

         Ms. Fritz's Personal History

         Ms. Fritz is a 53 year-old woman living in Colorado Springs, Colorado. In 2006, homeless and alone, she moved from Reno, Nevada to Colorado Springs to live with her uncle, and she has not been employed since. (R. 255, 466.) Ms. Fritz reports that her stepfather began sexually and physically abusing her at age six. (R. 366.) The lower back injury that forms part of her claimed disability was the result of her stepfather assaulting her and stomping on her back after knocking her down when she was fifteen. (Id.) She was first diagnosed with “manic depression” in 1996, COPD in 2008, and lumbar arthritis in 2008. (R. 368, Def.'s Br. 3). Ms. Fritz's family has an extensive history of bipolar disorder and alcohol abuse. (R. 292.) She started drinking alcohol at the age of fourteen, used marijuana from age seventeen to twenty, illicit prescription drugs from age thirty-three to forty, and various streets drugs, including heroin, from age forty-one to forty-three. (R. 368.) Ms. Fritz last used heroin in July 2006 and has received methadone treatment since then. (See e.g. R. 368, 657-58.) Since 2008, Ms. Fritz has received treatment from at least six mental and three physical health providers, she has received two physical and three psychological consultative examinations, and one state agency psychology consultant reviewed her medical records. In this time, Ms. Fritz has received treatment for myriad symptoms and diagnosed impairments, including mood disorder, poly-substance dependence, chronic back pain, foot and leg pain, COPD, anxiety disorder, cervical stenosis with thoracic outlet syndrome, panic disorder with agoraphobia, trichotillomania, depression, chronic constipation, and Raynaud's disease.

         The Tortuous Path of Ms. Fritz's Disability Claim

         Ms. Fritz's original DIS and SSI claims were premised on allegations of disability beginning in April 2009 due to arthritis in her back with bone spurs, bipolar disorder, manic depression, COPD, and leg and foot pain. (R. 255.) The SSA Regional Commissioner denied her applications in 2010, and then they were denied by an ALJ in 2011. (R. 116-19, 95-104). In May 2012, the Appeals Council remanded the case to the ALJ for a new hearing and decision. (R. 110-12)(finding the ALJ had failed to consider medical evidence showing Ms. Fritz may have a mental impairment; did not explain why limitations on Ms. Fritz's use of her right shoulder were not included in her residual functional capacity (RFC) assessment; and included a job class that was never mentioned by the vocational expert in his decision that exceeded Ms. Fritz's stated RFC). In September 2012, the ALJ held a second hearing, again finding Ms. Fritz was not disabled. (R. 35-59; R. 9-20). This decision became final when the Appeals Council denied review. (R. 1-4).

         In May 2013, Ms. Fritz sought judicial review by this Court. (R. 519-20). The Commissioner voluntarily moved to remand the case for further administrative proceedings, stating the Appeals Council “would direct the ALJ to further evaluate the medical opinions of record-including the opinions of Dr. Wanstrath and Dr. Benson regarding social limitations- and provide legally valid reasons for discounting any opinion or portion of an opinion that is not adopted.” (R. 526.) In addition, Fritz's RFC would be reassessed and additional vocational expert testimony obtained if necessary. (Id.) In light of this motion, I reversed the Commissioner's prior decision, and remanded the case to the Commissioner for further administrative proceedings consistent with the Commissioner's motion. (R. 522-23.) On remand, a new ALJ held a hearing in August 2014, and this ALJ found Ms. Fritz not disabled from her alleged onset of disability through the date of the decision, November 6, 2014. (R. 436-50.) This third ALJ decision became the final decision of the Commissioner and is the one before me now for review. Jurisdiction exists under 42 U.S.C. § 405(g).

         Ms. Fritz's Medical and Treatment History

         Before filing her application, Ms. Fritz was treated at Peak Vista Community Health Centers (Peak Vista) from April 2007 to July 2008. (R. 341-65.) On April 7, 2008, Kipton G. Freer, D.O., diagnosed Fritz with mood disorder, poly-substance dependence in remission, and chronic back pain and spinal problems, and assigned her a Global Assessment of Functioning (GAF) score of 50-55.[3] (R. 356.) During this visit, Ms. Fritz reported her prescribed Lithium medication as being “too sedating” and the prescribed dosage put her to sleep. (Id.) Dr. Freer, a psychiatrist, reported that Ms. Fritz struggled to provide a coherent mood and sleep history, and he recommended continuing to monitor her depressive and anxious symptoms. (Id.) Dr. Freer noted that prior drug abuse can make the diagnosis of bipolar disorder difficult, as symptoms of the disorder are hard to differentiate from the effect of abused substances. (Id.) On April 21, 2008, Dr. Freer conducted a follow-up consultation with Ms. Fritz. (R. 355.) During this visit, Dr. Freer performed a mental status exam on Ms. Fritz, finding that her mood was “sad, ” affect was “constricted, ” behavior “excessive, ” thought processing was “tangential and circumferential, ” thought content was not “overt delusion and [she] denied recent or current [suicidal thoughts], and her speech was not “pressure[d].” (Id.) Dr. Freer assigned Ms. Fritz a GAF score of 55-60. (Id.) He recommended that she discontinue taking Lithium, prescribed her Zoloft to treat her “multiple symptoms of depressed mood, ” continue therapy, and schedule follow-up consultations. (Id.). On July 16, 2008, Karen Campbell, D.O, treated Ms. Fritz. (R. 344-47.) During this consultation, Ms. Fritz reported that she did not like the Zoloft medication, as it made her feel manic and on “speed.” (R. 344.) Dr. Campbell noted that she consulted with Dr. Freer, who is reported to have doubted Ms. Fritz's diagnosis of bipolar disorder. (R. 346.) Dr. Campbell recommended Ms. Fritz have additional laboratory work performed, and seek follow-up treatment from another mental health provider, Dr. Kron, who specializes in the treatment of patients with histories of substance addiction. (Id., 342). Dr. Campbell also resumed Ms. Fritz's prescription for Lithium and discontinued her treatment with Zoloft. (R. 347.) In the Clinical Summary for Peak Vista, Dr. Campbell retained the diagnosis of depression and bipolar disorder after her July 16 encounter with Ms. Fritz. (R. 342.)

         Pursuant to Ms. Fritz's attempt to receive vocational services from the Colorado Department of Human Services' Division of Vocational Rehabilitation, her vocational counselor, Andrew Winters, directed she receive psychological and physical consultative examinations. (R. 313, 333-34.) David Benson, Ph.D., and Teresa Anderson, M.A, performed the psychological examination on October 14, 2008. (R. 313-25.) These professional evaluators compiled a report that provides Ms. Fritz's detailed medical and psychological history, and then proceeded to delineate the results of a wide-range of intelligence, personal, vocational, mental health, and substance abuse assessments used in her evaluation. (Id.) Ms. Fritz's full scale test score on the Wechsler Adult Intelligence Scale-Third Edition showed that she was in the “low average range of intellectual functioning.” (R. 317). These examiners summarized their findings from this testing that Ms. Fritz

Has problems with abstract reasoning and a low vocabulary. She also has poor common sense reasoning. She has marked deficits in the performance area, compared to her verbal abilities. Therefore, she would be best suited for tasks that emphasize verbal abilities. She has low visual motor speed and poor attention to detail and lower abstract visual perceptual reasoning. Overall, her performance ability falls at a level that would cause her a significant problem in lines of work where there was a strong emphasis on performance-related skills.

(R. 322). Dr. Benson and Ms. Anderson also performed a wide range achievement test (WRAT3) on Ms. Fritz-finding her scores indicated Ms. Fritz could compete at the community college or trade school level, but probably not above that level. (R. 323.) The evaluators summarized their evaluation as showing that Ms. Fritz

hasa combination of emotional and characterological problems, as well as some mood problems which will be a barrier to her participation in the work world. These characteristics will result in various ongoing difficulties . . . She will have rapid mood changes and ongoing difficulties with anxiety, including a panic disorder and obsessive/compulsive characteristics . . . Ms. Fritz will be overwhelmed by stress and she tends to respond to stress with increased physical problems . . . She may have poor or erratic performance and be abrasive. She will appear to lack consideration for others and will tend to complain about many things . . . She has strong social anxiety and is prone to having panic attacks in certain social situations . . . Other problems include the fact that Ms. Fritz has difficulty with attention, concentration, and focus and has a poor memory. She has difficulty sleeping and is often fatigue [sic] . . . With these problems together, she will face multiple barriers to effective participation in the work world.

(R. 323-24.) Dr. Benson and Ms. Anderson diagnosed Ms. Fritz with bipolar disorder, anxiety disorder, panic disorder with agoraphobia, and poly-substance dependence. (R. 325.) The evaluators recommended a situational assessment of Ms. Fritz, as well as ongoing mental health treatment of her diagnosed conditions. (Id.) In regard to Ms. Fritz's vocational placement, Dr. Benson and Ms. Anderson recommended that

[t]he best choice for her will be a verbally oriented position in a well-structured job where she doesn't have to deal in an unpredictable manner with the general public. She should work mostly along or with individuals with whom she is comfortable and willing to work with her. She is likely to have problems on the job, both interpersonally and emotionally. (R. 325.)

         Then, pursuant to her state vocational counselors request, Gregory Finnoff, D.O., performed a consultative physical exam of Ms. Fritz on October 25, 2008. (R. 326-36.) Ms. Fritz reported her chief complaints as chronic back pain, bipolar disorder, and COPD. (R. 326.) Dr. Finnoff, performed a physical exam, including: taking vital signs; testing coordination, station, and gait, as well as range of motion; and performing spine and neurological exams. (R. 328-31.) Dr. Finnoff was not provided any medical records prior to his examination of Ms. Fritz, but still diagnosed her with “chronic back painsyndrome”[4] (noting that exam findings were “consistent with musculoskeletal back pain”), bipolar disorder, and COPD. (R. 331.) He also noted that a lumbar radiograph was consistent with Ms. Fritz's claimed symptoms and the examination finding that she had “moderate narrowing plus sclerosis and a grade ½ spondylolisthesis at the L3-4 level [and a] large amount of anterior and lateral spur formation [at] that level, [giving the impression of m]oderate to severe degenerative changes at the [same level].” (Id.) As relevant here, Dr. Finnoff concluded in his functional assessment of Ms. Fritz that “[he] would anticipate that she would be able to tolerate normal level of complexity and stress in a workplace environment. She would be able to tolerate frequent sitting, standing, walking, continuous, lifting 10 pounds frequently, lifting up to 25 occasionally, lifting up to 50, never.” (Id.)

         In February 2009, Ms. Fritz received at least three individual therapy sessions at Pikes Peak Mental Health. (R. 643-44.) In a summary of the treatment provided, Sharon Allen, M.A., noted that Ms. Fritz reported a mostly stable mood but she “freaks out” if she watches the news, gets very anxious and angry, has problems with concentration, and has feelings of inappropriate guilt and anxiety. (R. 643.)

         In 2010, Ms. Fritz underwent additional psychological and physical consultative examinations. On March 22, 2010, Sandra W. Lester, PsyD., a licensed clinical psychologist, examined Ms. Fritz. (R. 366-72.) Dr. Lester reviewed Dr. Finnoff's medical report, provided a detailed medical and personal history, and performed a mental status exam. (R. 366-71.) Dr. Lester diagnosed Ms. Fritz with bipolar disorder (with most recent episode “manic, severe, with psychotic features”), opioid dependence, trichotillomania, anxiety disorder, chronic back painsyndrome and COPD, and assigned her a GAF of 50. (R. 371-72.) Dr. Lester stated that Ms. Fritz's mental impairments appeared to be “chronic and severe, ” and found her symptoms to be consistent with her previous diagnoses. (R. 372.) Dr. Lester concluded that her

clinical impressions of Ms. Fritz are that she is depressed, and is experiencing marked distress due to her physical limitations and her mental health conditions . . . Her ability to attend to tasks and concentrate is impaired. Her ability to make good decisions and judgments are likely subject to her state of decompensation from her mental health conditions. She would most likely have difficulties in structured environments that require demands on her. She may be able to do simple jobs or menial tasks and follow simple instructions if such jobs are not physically demanding, and providing that her mental health conditions are properly treated. At this time she would be unable to sustain the demands of a normal work day in terms of physical endurance, and the mental capacity to concentrate and attend to work place tasks.

(R. 372.)

         On March 27, 2010, Edwin Baca, M.D., completed a physical consultative exam of Ms. Fritz. (R. 373-78.) Similar to the procedure followed by Dr. Finnoff, Dr. Baca performed a physical exam, including: taking vital signs; testing coordination, station, and gait, as well as range of motion; and performing spine and neurological exams. (R. 375-77.) Dr. Baca diagnosed Ms. Fritz with depression, COPD (supported by spirometry testing), bipolar disorder, multiple pneumonias in the past, past opioid and heroin addiction, chronic lower back pain, chronic bilateral lower extremity pain and weakness secondary to back pain, and bilateral temporomandibular joint pain (TMJ). (R. 378.) In his functional assessment of Ms. Fritz, Dr. Baca “strongly recommend[ed]” that she continue seeing a psychiatrist and establish care with a primary care physician for further evaluation and continued treatment “for her current medical conditions as well as chronic lower back pain.” (Id.) Dr. Baca also found that Fritz could stand or walk, as well as sit, for four to six hours per an eight-hour workday, but found that “[p]ostural limitations recommended at this time are no bending, stooping, crouching greater than five times an hour or as tolerated by the patient.” (Id.) Dr. Baca also added the functional limitation that Ms. Fritz “should not have repetitive motion overhead, especially with her right upper extremity and should . . . not lift a weight load overhead greater than five pounds.” (Id.)

         On April 13, 2010, state agency psychology consultant James J. Wanstrath, Psy.D., reviewed the record of Ms. Fritz's DIB and SSI applications, and made identical findings on both claims. (R. 69-70, 84-85.) Dr. Wanstrath concluded that Ms. Fritz has understanding and memory limitations, as her ability to understand, and to remember detailed instructions, was “moderately limited.” Next, she has sustained concentration and persistence limitations, as her ability to carry out detailed instructions, to maintain attention and to concentrate for extended periods, and to complete normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace with an unreasonable number and length of rest periods, were all “moderately limited.” (R. 69-70, 84-85.) Additionally, Dr. Wanstrath found that Ms. Fritz has social interaction limitations, as her ability to interact appropriately with the general public, to accept instructions and respond appropriately to criticism from supervisors, to get along with coworker or peers without distracting them or exhibiting behavioral extremes, and to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness, were all “moderately limited.” (R. 70, 85.) Dr. Wanstrath provided his ultimate opinion of Ms. Fritz's Mental Residual Functional Capacity in narrative form, concluding that

[i]f claimant stays on her meds-she retains mental ability to do work not involving significant complexity or judgment; [she] can do work requiring up to 3 month time to learn techniques, acquire information and develop facility needed for an average job performance; [she has] moderate restrictions #18 and minimal interaction with [general public] and cannot work closely with supervisors or coworkers; [she] can accept supervision and relate to coworkers if contact is not frequent or prolonged[.]


         From May 2011 to July of 2012, Ms. Fritz received treatment at Open Bible Medical Clinic. (R. 403-23.) The Clinic provided no report or conclusion regarding Ms. Fritz's impairments and potential limitations. (Id.) Initially, Ms. Fritz sought treatment at the Clinic for “menstrual irregularities/weakness, ” during which time her provider noted that her “perceptions [were] distorted.” (R. 423.) In addition to Lithium, the Clinic prescribed her Flexeril, a drug used to treat skeletal muscle pain. (R. 420, 416, 414, 412, 410, 409, 406.) Laboratory analysis of her blood revealed that Ms. Fritz's Lithium level was lower than the typical therapeutic level (R. 421.), although later results showed an increase (R. 418.), and finally being described as a “borderline low” level (R. 415). In February 2012, she also reported increased anxiety since she was started on a thyroid medication (Levothyroxine). (Id.) On June 5, 2012, her provider noted under his assessment and plan “bipolar-stable.” (R. 408.)

         From August 2011, to at least August 2014, Ms. Fritz received mental health treatment at Franciscan Community Counseling from Sharon K. Compono, LCSW. (R. 675-723.) Ms. Compono had 51 individual counseling sessions with Fritz on a weekly basis from August 16, 2011 to September 12, 2012. (R. 431.) LCSW Compono authored two reports summarizing the treatment and mental condition of Ms. Fritz, the first on September 13, 2012, and the second on August 28, 2014. (R. 430-32; R. 675-77.) In 2012, Ms. Compono diagnosed Ms. Fritz with bipolar disorder (most recent episode manic, severe, with psychotic features), anxiety disorder, poly-substance dependence (sustained remission), trichotillomania, chronic back pain, arthritis, ovarian cyst, urinary problems, constipation, and hypothyroidism. (R. 432.) In her 2012 report, Ms. Compono concluded

the severity and number of Ms. Fritz' symptoms compromise her daily functioning socially, emotionally, and occupationally [and thus] there is serious concern over her ability to maintain employment over any period of time. Based upon [Ms. Compono's] clinical impression, there is little likelihood Ms. ...

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