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Terrell v. Berryhill

United States District Court, D. Colorado

April 13, 2017

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.


          Michael E. Hegarty, United States Magistrate Judge.

         Plaintiff Shurena Lea Terrell 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. 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 July 1, 2013. [Administrative Record (“AR”) 139-140] After the application was denied on December 3, 2013 [AR 80-82], an Administrative Law Judge (“ALJ”) scheduled a hearing upon the Plaintiff's request for March 11, 2015 [AR 111-131], at which Plaintiff was represented by counsel, and the Plaintiff and a vocational expert testified. [AR 37-66] The ALJ issued a written ruling on April 22, 2015 finding Plaintiff was not disabled starting on February 10, 2013 because considering Plaintiff's age, experience, and residual functional capacity, she could perform her past jobs. [AR 16-36] On August 10, 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 1-7]. See 20 C.F.R. § 404.981. 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 August 12, 1980; she was 32 years old when she filed her application for DIB on August 10, 2013. [AR 139] Plaintiff claims she became disabled on February 10, 2013 [id.] and reported that she was limited in her ability to work due to a “broke[n] back in three places[;] right arm shattered[;] depression[;] right leg nerve damage[;] and fibromyalgia.” [AR 168] Plaintiff filed a “Function Report” in tandem with her application, in which she explained that she has “restrictions from d[octo]r: no lifting over 5 lbs[;] no sitting[, ] standing[, ] walking[, ] lying down 10-15 minutes.” [AR 188] She also stated she had difficulty with sleeping, cooking, laundry, money management, and housecleaning, and she got assistance from her mother and daughter with these activities. [AR 189-192]

         The record indicates that on September 16, 2011, Plaintiff presented to Pueblo Imaging Center for an x-ray of her lumbar spine; John L. Sherman, M.D. found a “[p]robable old compression fracture of the T12 vertebral body with anterior wedging and slight kyphosis.[1] The remainder of the lumbar spine is normal.” [ECF 235] Records from workers' compensation physician, J. Douglas Bradley, reflect that Plaintiff was being treated for a “lumbar contusion and strain/thoracic strain” after she “slipped and fell on water in [the] restroom” on September 8, 2011, for which Dr. Bradley placed Plaintiff on lifting and work hour restrictions. [AR 334-369] These records indicate Plaintiff's complaints of headaches and back pain from approximately October 2011 through May 2012. [Id.] Following an MRI of Plaintiff's lumbar spine on May 7, 2012, Dr. Sherman found “a probable old compression fracture of the superior endplate or T12 with minimal retropulsion, but without traumatic disc herniation, significant stenosis, or cord impingement. There is no evidence of lumbar disc herniation or significant bulging. There is no evidence of nerve root impingement. Mild facet joint arthritis is suspected at the L4-5 level on the right and at the L5-S1 level on the left.” [AR 227-228]

         Dr. Bradley referred Plaintiff to Roger D. Sung, M.D. at The Spine Center, who she saw on June 6, 2012; Dr. Sung found the fracture had healed, the “mild facet changes” were likely “not part of the problem, ” Plaintiff was not a candidate for surgery, and he would recommend physical therapy “for several months.” [AR 229-230] Plaintiff underwent physical therapy at Excel starting on July 3, 2012, but there were no further records from this facility after August 2, 2012. [AR 236-245] Plaintiff returned to Dr. Bradley, who referred her for chiropractic treatment (8 visits), but the record contains no indication that Plaintiff pursued this treatment. [AR 274-298]

         On September 20, 2012, Plaintiff presented to Excel for a Functional Capacity Evaluation at which Barbara Kelly PT concluded Plaintiff could occasionally walk, sit, stand, and “reach immediate” with her right hand, and she could not tolerate stooping, crouching, kneeling, climbing stairs, and repetitive reaching with both hands. [AR 248-265] On September 25, 2012, Dr. Bradley found Plaintiff to be at maximum medical improvement (MMI) with the following restrictions: lifting, carrying, pushing, and pulling no more than ten pounds; sitting no more than two hours per day; and no crawling, kneeling, squatting, and climbing. [AR 294] On October 25, 2012, Dr. Bradley completed a Permanent Partial Impairment report in which he noted Plaintiff was in a “severe car accident in [sic] 5/7/2006 in which she had a compression fracture at ¶ 12, right forearm fracture requiring surgery”; she had been on Oxycodone and Hydrocodone before the September 8, 2011 slip and fall; Plaintiff “rescheduled or no showed for several [physical therapy] visits”; and she complained primarily of “upper and lower back pain with no neck pain.” [AR 322-323] Dr. Bradley concluded that Plaintiff was limited to lifting, carrying, pushing, and pulling no more than ten pounds; sitting no more than two hours per day; working no more than four hours per day as a customer service representative; and she was to avoid stooping, kneeling, squatting, climbing, and crouching. [AR 323-324]

         More than a year later, on November 30, 2013, Plaintiff presented to Timothy Moser, M.D. for a consultative physical examination. [AR 379-383] Plaintiff reported that she was hospitalized for a week after the car accident in 2006, from which she suffered the T12 compression fracture and right forearm fracture, the latter of which required surgery; she was diagnosed with fibromyalgia in 2010 and had flare-ups two days per week, for which medication provided some relief; she was able to cook and, occasionally, she washed dishes, swept, mopped, and vacuumed, but did no laundry; and she spent her days “working around the home.” [AR 379-380] After a thorough physical examination, Dr. Moser diagnosed Plaintiff with a history of spine fracture, status post arm fracture, and myofascial pain, and found Plaintiff could stand, walk, and sit without limitations; could frequently climb, balance, stoop, kneel, crouch, and crawl, and could occasionally lift and carry fifty pounds and frequently lift and carry twenty-five pounds. [AR 382]

         Plaintiff presented to the Pueblo Community Health Center on December 29, 2014 as a new patient; Patricia Bursnall NP examined Plaintiff and assessed her with fibromyalgia, depression, a ligament tear in her knee, and compression fracture of her spine. [AR 395-398] NP Bursnall prescribed medication for the pain ailments and ordered physical therapy for Plaintiff's knee and back. [Id.] Plaintiff also met with Sandra Leming for a mental health evaluation; Ms. Leming assessed Plaintiff with posttraumatic stress disorder and major depressive affective disorder, recurrent. [AR 416-422]

         III. Hearing Testimony

         At a hearing on March 11, 2015, Plaintiff (who appeared with counsel) and a vocational expert, Denis Duthan, testified. [AR 37-66] Plaintiff testified that she suffered from “a broken back, ” fibromyalgia, “knee problems, ” and “a bad right hip”; she was reduced to part-time work after her slip and fall, then left employment in early 2013 after her worker's compensation case settled; she had not attempted to find work since then because her “body was going more downhill”; her fibromyalgia started after the slip and fall; she tore the meniscus in her left knee after slipping down the stairs at her home in 2014; she did her own grocery shopping, washed dishes, and vacuumed the house; she could drive up to ten minutes at a time; due to her medications, she had difficulty focusing and experienced fogginess, dizziness, and fatigue; she could walk for twenty minutes at a time; she could walk a grocery store in 60-90 minutes if she sat down from time to time, and it took a full day to recover from a grocery trip; for a sedentary position, she would need to get up and walk around for twenty minutes each hour; she had done “intake” for mental health treatment and “they [were] setting [her] up for the appointment; and, she felt she could perform a part-time position, but did not seek employment due to depression and fatigue. [AR 40-60]

         The ALJ then turned to the vocational expert, Mr. Duthan, who testified that an individual with Plaintiff's age, experience and education and the following limitations - full range of light work, occasional bending, no squatting or kneeling, and no foot or leg controls - could perform Plaintiff's past jobs of dental assistant, telemarketer, and appointment clerk/receptionist, but not store clerk or office clerk. [AR 62-63] He also attested that the added limitations of SVP 2 or less and working only every other day would not be compatible with competitive employment. [AR 63] Furthermore, if the individual were limited to being off task for twenty minutes each hour, she would be unable to perform any of the jobs listed above and the limitations would eliminate all work. [AR 64-65]

         The ALJ issued an unfavorable decision on April 22, 2015. [AR 16-32]


         To qualify for benefits under sections 216(i) and 223 of the SSA, an individual must meet the insured status requirements of these sections, be under age 65, file an application for DIB and/or SSI for a period of disability, and be “disabled” as defined by the SSA. 42 U.S.C. §§ 416(i), 423, I. SSA's Five-Step Process for Determining Disability

         Here, the Court will review the ALJ's application of the five-step sequential evaluation process used to determine whether an adult claimant is “disabled” under Title II of the Social Security Act, which is generally defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also Bowen v. Yuckert, 482 U.S. 137, 140 (1987).

         Step One determines whether the claimant is presently engaged in substantial gainful activity. If she is, disability benefits are denied. See 20 C.F.R. § 404.1520. Step Two is a determination of whether the claimant has a medically severe impairment or combination of impairments as governed by 20 C.F.R. § 404.1520(c). If the claimant is unable to show that her impairment(s) would have more than a minimal effect on her ability to do basic work activities, she is not eligible for disability benefits. Id. Step Three determines whether the impairment is equivalent to one of a number of listed impairments deemed to be so severe as to preclude substantial gainful employment. See 20 C.F.R. § 404.1520(d). If the impairment is not listed, she is not presumed to be conclusively disabled. Step Four then requires the claimant to show that her impairment(s) and assessed residual functional capacity (“RFC”) prevent her from performing work that she has performed in the past. If the claimant is able to perform her previous work, the claimant is not disabled. See 20 C.F.R. § 404.1520(e), (f). Finally, if the claimant establishes a prima facie case of disability based on the four steps as discussed, the analysis proceeds to Step Five where the SSA Commissioner has the burden to demonstrate that the claimant has the RFC to perform other work in the national economy in view of his age, education and work experience. See 20 C.F.R. § 404.1520(g).

         II. Standard of Review

         This Court's review is limited to whether the final decision is supported by substantial evidence in the record as a whole and whether the correct legal standards were applied. See Williamson v. Barnhart, 350 F.3d 1097, 1098 (10th Cir. 2003); see also White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Thus, the function of the Court's review is “to determine whether the findings of fact . . . are based upon substantial evidence and inferences reasonably drawn therefrom. If they are so supported, they are conclusive upon the reviewing court and may ...

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