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Kearnes v. Berryhill

United States District Court, D. Colorado

April 7, 2017

NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.



         Plaintiff Tracy Jo Kearnes suffers from osteoarthritis, fibromyalgia, degenerative changes in her spine, carpal tunnel syndrome, pars planitis, [2] headaches, a learning disorder, bipolar disorder, post-traumatic stress disorder, a pain disorder, anxiety, and depression. In April 2010, Kearnes filed her applications for Social Security Income (SSI) and Disability Insurance Benefits (DIB), which the Acting Commissioner of Social Security (Commissioner) denied in September of that year. At Kearnes‘s request, an ALJ held a hearing in July 2011. The ALJ found that she was not disabled, and Kearnes sought review of the decision by the Social Security Appeals Council. In July 2013, the Appeals Council reversed the ALJ‘s decision and remanded the claim for another hearing with instructions for the ALJ to consider new and material evidence. The hearing on remand was held, and in December 2013, the same ALJ issued a second unfavorable decision. The Appeals Council denied further review a year and a half later, and Kearnes filed this appeal of the Commissioner‘s final decision. All administrative prerequisites for appeal have been satisfied, and jurisdiction is proper under 42 U.S.C. § 405(g).

         On appeal, Kearnes argues that the ALJ (1) failed to include any nonexertional limitations resulting from her severe mental impairments in the residual functional capacity (RFC) determination, (2) did not properly consider her ability to perform sustained work activities, and (3) failed to analyze whether the number of jobs identified by the vocation expert is significant. Because the ALJ‘s order is inconsistent with respect to Kearnes‘s mental impairments and limitations, I REVERSE and REMAND the case.

         I. Legal Standard

         The exclusive questions for review on a Social Security appeal are whether there is substantial evidence supporting the final decision of the Commissioner and whether the correct legal standards were applied by the ALJ. See Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005) (citing Hamilton v. Sec'y of Health and Human Servs., 961 F.2d 1495, 1497-98 (10th Cir.1992). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Mays v. Colvin, 739 F.3d 569, 576 (10th Cir. 2014) (citation omitted). "A decision is not based on substantial evidence if it is overwhelmed by other evidence in the record." Knight ex rel. P.K. v. Colvin, 756 F.3d 1171, 1175 (10th Cir. 2014) (internal quotation omitted). In reviewing the decision of the Commissioner, I cannot substitute my judgment for that of the ALJ or reweigh the evidence. Id. (citation omitted).

         To qualify for SSI under 42 U.S.C. § 1382(a)(1), a claimant must be aged, blind, or disabled and must be eligible based on his income and resources. To qualify for DIB under 42 U.S.C. § 423(a), a claimant must, among other requirements, be found to be under a disability while insured for disability benefits. A claimant can only be found to be disabled "if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Id. §§ 1382c(a)(3)(B), 423(d)(2)(A). A claimant‘s disability must have lasted or be expected to last for at least 12 months. Id. §§ 1382c(a)(3)(A); 423(d)(1)(a). In determining whether a claimant is disabled, the ALJ must follow the five-step sequential protocol set forth in §§ 404.1520(a)(4) and 416.920(a)(4) of Title 20 of the Code of Federal Regulations.[3]

         If my decision is appealed, the Tenth Circuit will review it de novo to "independently determine whether the ALJ‘s decision is free from legal error and supported by substantial evidence." Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (internal quotation marks omitted). Consequently, the analysis I provide in this order is primarily for the understanding of the parties.

         II. Background

         Kearnes was born in 1967. She is a high school graduate and in the past worked as a loan processor, office assistant, and printing coordinator. She has not worked since 2008, however, due to her pain. R. at 173. Her chief complaints at the most recent hearing were the pains in her neck, back, shoulder and right hip radiating to her leg and foot. R. at 158. Kearnes testified that she could not sit at computer or typewriter because it hurts her neck, makes her lightheaded and dizzy, and causes numbness in her arms and hands. R. at 157-58. She cannot reach overhead and has trouble sitting or walking for long periods. R. at 158. Her attempts to compensate for her neck pain and immobility further irritate her lower back. R. at 157. She also has daily headaches for which she takes two medications. R. at 159. Kearnes testified that being in pain every day is very depressing for her in that it greatly limits her activities. Id.

         Medical Evidence

         Dr. Wendy Day treated Kearnes until 2009 when she lost her health insurance and then starting again in 2012 when she qualified for Medicaid. R. at 802. Dr. Day completed a Colorado Department of Human Services Functional Limitations Assessment for Kearnes in July 2008, reporting that Kearnes could not bend, squat, kneel, crawl, climb ladders, balance, lift over 10 pounds, reach above her shoulders, or rotate her head and neck and would need frequent breaks to stretch her back. R. at 441. Dr. Day also indicated in that assessment that Kearnes could only sit, stand, walk, lift up to 10 pounds, push, pull, and perform fine finger manipulations up to 33% of an eight-hour day. Id. In September 2013, Dr. Day further opined, in a Physical Residual Capacity Questionnaire, that Kearnes‘s concentration is constantly affected by her pain; that she can only sit or stand for 20 minutes at a time; that she must walk every 20 minutes for five minutes; that she will need to shift positions between sitting, standing, and walking at will; that she will need to take unscheduled breaks of ten minutes once an hour; and that she will miss more than four days of work per month. R. at 762-65.

         Licensed marriage and family therapist Kathe Skinner developed a treatment relationship with Kearnes over many months and ultimately concluded, in 2009, that she suffers from significant emotional abuse that has led to many psychosocial symptoms, which are also influenced by a significant biological component. R. at 484. Ms. Skinner additionally filled out a Colorado Department of Human Services Mental Health Report, stating that Kearnes‘s pain and fatigue limit her work tolerance and that her depression impacts her memory and ability to concentrate. R. at 444. Kearnes‘s records from the Switzer Community Counseling Center document treatment for her symptoms of depression, anxiety, and self-harming behaviors from 2009 to 2010.

         Kearnes was treated by Dr. Laurence Lopez at Peak Vista Community Health Centers from 2009 to 2011. He referred her for mental health counseling multiple times. See R. at 524, 549, 555. Dr. Lopez wrote a letter on her behalf in January 2011 opining that she had been unable and would be unable in the foreseeable future to hold a job due to her medical problems. R. at 684. In May 2011, he completed a disability questionnaire, responding that Kearnes suffered from osteoarthritis, degenerative disc disease, and facet arthritis and met a listing for disorders of the spine. R. at 658-60.

         State agency psychologist Dr. MaryAnn Wharry determined, in February 2010, that Kearnes had moderate difficulties in maintaining social functioning and concentration, persistence, or pace. R. at 193. She concluded that Kearnes may have difficulty understanding and remembering detailed instructions, cannot work closely with supervisors or coworkers, and should have no interaction with the public. R. at 194-95.

         In August 2010, consultative psychologist Dr. Neufeld found Kearnes to have mild to moderate difficulty with understanding and recalling instructions and moderate impairment in social interactions. R. at 600. He also opined that her persistence and ...

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