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Troe v. Berryhill

United States District Court, D. Colorado

May 30, 2017

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


          Michael E. Hegarty, United States Magistrate Judge.

         Plaintiff Mark Ronald Troe appeals from the Social Security Administration (“SSA”) Commissioner's final decision denying his 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 affirms in part and reverses in part the ALJ's decision, and remands the matter to the Commissioner for further consideration.[1]


         I. Procedural History

         Plaintiff seeks judicial review of the Commissioner's decision denying his application for DIB filed on August 9, 2013. [Administrative Record (“AR”) 164-165] After the application was denied on March 13, 2014 [AR 103-109], an Administrative Law Judge (“ALJ”) scheduled a hearing upon the Plaintiff's request for April 17, 2015 [AR 125-151], at which Plaintiff was represented by counsel, and the Plaintiff and a vocational expert testified. [AR 38-73] The ALJ issued a written ruling on July 14, 2015 finding Plaintiff was not disabled starting on March 1, 2011 through June 30, 2014 because considering Plaintiff's age, experience, and residual functional capacity, he could successfully adjust to other work existing in significant numbers in the national economy. [AR 20-32] On September 13, 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. § 404.981. Plaintiff timely filed his complaint with this Court seeking review of the Commissioner's final decision.

         II. Plaintiff's Alleged Conditions

         Plaintiff was born on September 30, 1965; he was 47 years old when he filed his application for DIB on August 9, 2013. [AR 164] Plaintiff claims he became disabled on January 1, 2010 [AR 183] and reported that he was limited in his ability to work due to “occular migraines, degenerative disc disease, back injury, ‘ADD, ' sciatica, and migraines.” [AR 206] Plaintiff completed a “Function Report” in tandem with his application, in which he explained that he was “unable to complete job tasks and be a reliable employee” because he “would miss many days of work due to [his] condition” and he was “not able to determine when [his] condition will limit [him] or act up.” [AR 223] He also stated that he had difficulty sleeping due to pain; he could prepare easy meals, do laundry and dishes, shop for groceries, and drive; physical and mental activity were difficult due to pain; and ocular migraines made seeing difficult at times. [AR 224-230]

         The record dates back to 2011, at which time Plaintiff was treated by Usama Ghazi, M.D. for lumbar back pain. Plaintiff had reported a back injury at work from an incident in July 2005 when he was carrying a spool of wire with a partner, and the partner dropped the spool. [AR 290] An MRI taken on June, 272011 revealed “an L4-5 disk protrusion which measure[d] 7 mm; . . . at ¶ 5-S1, however, there is a 7mm right lateral disk osteophyte complex encroaching the right foramin, contacting the S1 nerve root.” [AR 335] During 2011-2012, Dr. Ghazi performed rhizotomies on the Plaintiff's spine, prescribed him pain medication, and ordered physical therapy.

         On February 28, 2013, Plaintiff presented to the emergency department at Longmont United Hospital complaining of high blood pressure and increasing fatigue, lethargy, and exertional dyspnea. [AR 366] The attending physician, Andrew Johanos, M.D., found no renal insufficiency, brain bleed, or abnormal EKG, and encouraged Plaintiff to be admitted “for control of his blood pressure, ” but Plaintiff refused. [AR 368] Thereafter, Plaintiff began treating with Murry Drescher, M.D. for his “benign” hypertension and with Matthew Brett, M.D. as his “primary care provider” (PCP). On May 17, 2013, Plaintiff reported to Dr. Brett that he had “been on [Adderall] for 25 years” to treat his Attention Deficit Disorder (ADD) and dyslexia, and asked for a prescription, which Dr. Brett granted. [AR 490-491] Plaintiff also reported his pain was under “good control” with the medication, Avinza. [AR 479, 482, 485] However, on October 21, 2013, Plaintiff complained of increased back pain to Dr. Brett and requested “another rhizotomy, ” but the doctor “adjusted” his Percocet dosage and refilled his Avinza. [AR 529-530] Plaintiff reported the same pain complaints the following November, December, and January. [AR 544-554]

         On March 10, 2014, Plaintiff presented to John Mars, M.D. for a physical consultative examination. Plaintiff reported he developed migraines in 2007 after a head trauma; he was diagnosed by a “specialist” with ocular migraines, which he experienced twice a month for one-to-two days each time; he avoided television and computer screens, which seemed to trigger the migraines; he injured his back in 2005 when he lifted a large spool of wire while working as an electrician; he was treated for back pain with medication, physical therapy, and four-to-five rhizotomies; he was diagnosed with ADD as a child and graduated from high school; and, he was able to dress, bathe, drive, cook simple meals, shop for groceries, and perform limited household chores. [AR 555-556] After a thorough physical examination, Dr. Mars diagnosed Plaintiff with a history of migraine headache, low back pain, ADD, and obesity, and found Plaintiff should avoid ladders and scaffolds due to medications, but he could stand, walk, climb stairs, and sit without limitations; could handle objects and use his feet for foot controls; could kneel, stoop, crawl and crouch on occasion; and could lift and carry twenty pounds. [AR 558] An x-ray of the Plaintiff's lumbar spine that same day revealed “degenerative disc disease at ¶ 11-T12 and L4-L5.” [AR 568]

         In the spring 2014, Dr. Brett expressed his concerns to Plaintiff regarding his weight, blood sugar levels, and the amount of pain medication Plaintiff was taking; Dr. Brett encouraged diet and exercise and adjusted Plaintiff's medication. [AR 600-613] By September 2014, Plaintiff was only on dilaudid for pain and “doing well” [AR 590]; however, in October 2014, Plaintiff had an “episode” of severe back pain, and Dr. Brett placed Plaintiff on his original medication regimen. [AR 589] ¶ 2015, Plaintiff complained of a head injury and increased headaches [AR 688], but a CT scan of his brain revealed “no evidence of acute intracranial abnormality.” [AR 691]

         In March 2015, Dr. Brett referred Plaintiff to the Salud Family Health Center for treatment of Plaintiff's depression. [AR 700] Alfonso Cappa assessed Plaintiff with “bipolar NOS” and suggested a prescription of “mood stabilizers.” [AR 695-696] Dr. Brett prescribed Depakote starting on March 30, 2015. [AR 694]

         On April 2, 2015, a Medical Consultant for the SSA, K. Terry, completed a physical residual functional capacity assessment for Plaintiff finding that Plaintiff could occasionally lift and/or carry twenty pounds and frequently lift and/or carry ten pounds; sit, stand, and/or walk for six hours of an eight-hour workday; had no postural, manipulative, visual, or communicative limitations; and was to avoid concentrated exposure to extreme cold, noise, and machine hazards. [AR 668-675]

         Plaintiff presented to Stuart L. Kutz, Ph.D. on May 6, 2015 for a psychological consultative examination at the ALJ's request following the hearing in this case. [AR 702-710] Concerning his mental health, Plaintiff reported that he was assessed with ADHD as a child, first prescribed psychoactive medication in the 1980s for depression, never had any inpatient mental health treatment, and his symptoms became worse over time since his 2005 back injury. Plaintiff stated that he had no friends, his ex-wife helped him with cleaning, he had “become a recluse, ” he lived in a home owned by his parents, he last worked full-time in 2005 and performed some work as an electrician for a short period in 2011 or 2012. Dr. Kutz diagnosed Plaintiff with mood disorder NOS and anxiety disorder NOS, and assessed a Global Assessment of Functioning (GAF) score of 60.[2]

         [AR 707]

         III. Hearing Testimony

         At a hearing on April 17, 2015, Plaintiff (who appeared with counsel) and a vocational expert, William Tisdale, testified. [AR 38-73] During opening remarks, Plaintiff's counsel expressed Plaintiff's desire to amend the disability onset date from January 1, 2010 to March 1, 2011. [AR 40] Plaintiff testified that he had pain all day long in his lower back that radiated down his right leg and into his foot; he could lift ten pounds, sit for an hour, stand for forty-five minutes to an hour, and walk thirty to forty-five minutes; he never left his home without his cane; the medication prescribed for his diabetes made him feel unwell; he did not know whether his diabetes affected his ability to work; he was suffering migraines once a week that lasted a day, and occular migraines every other day that lasted an hour; he slipped and fell during a recent ice storm, which caused ringing in his ears and cognitive issues; the medications he took for back pain, diabetes, high blood pressure, migraines, ADD, and depression caused him to feel drowsy and sleep during the day; he lived in a mobile home owned by his parents; his ex-wife cleaned the home once a month, but he did his own laundry and shopped for groceries; he drove “a little bit”; his ADD caused him to become distracted and unable to finish projects; he became “short-tempered” and blunt with people; he had no friends, but socialized some with family; he became anxious and claustrophobic in restaurants, but not in the grocery store; he was able to stay focused for hours and, sometimes, days; television and computer screens aggravated his migraines, so he listened to the radio; he lost inability to maintain minimal personal hygiene OR serious suicidal act with clear expectation of his friends due to pain; bending is the primary cause of his back pain/spasms; to alleviate the pain, he would lie down in a “Joe Namath pose”; he also positioned his clothes dryer up and ate off of paper plates, so he would not have to bend to fold clothes or load a dishwasher; he could sleep only two hours at a time before the pain awakened him; and, the combination of the pain, medications, and lack of sleep made him feel unwell all of the time. [AR 41-62]

         The ALJ then turned to the vocational expert, Mr. Tisdale, who testified that an individual with Plaintiff's age, experience and education and the following limitations- occasionally lift and carry twenty pounds; frequently lift and carry ten pounds; sit, stand and walk six hours in an eight-hour workday; avoid concentrated exposure to extreme cold, noise, fumes, odors, dusts, gasses, unprotected heights, and moving machinery- could not perform the Plaintiff's past jobs but could perform the jobs of “routing clerk, ” “mail clerk, ” and “cashier”; if the limitations were further restricted to the use of a case for ambulation, the routing clerk and mail clerk would be eliminated and the cashier would be eroded by one half. [AR 66-67] At the sedentary level, such individual could perform the jobs of “document specialist” and “addressing clerk.” If the individual were limited further to avoiding crawling, ladders, scaffolds and only occasionally stoop, kneel, and crouch, he would be able to perform any of the listed jobs. [AR 67-68] If such individual were required to nap twice a day or to be absent three days per month on a consistent basis, there would be no work available.

         The ALJ issued an unfavorable decision on July 15, 2015. [AR 17-33]


         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, 1382.

         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 he 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 his impairment(s) would have more than a minimal effect on his ability to do basic work activities, he 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, he is not presumed to be conclusively disabled. Step Four then requires the claimant to show that his impairment(s) and assessed residual functional capacity (“RFC”) prevent him from performing work that he has performed in the past. If the claimant is able to perform his 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 not be disturbed.” Trujillo v. Richardson, 429 F.2d 1149, 1150 (10th Cir. 1970); see also Bradley v. Califano, 573 F.2d 28, 31 (10th Cir. 1978).

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. . . . However, [a] decision is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it.” Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004) (citations omitted). In addition, reversal may be appropriate when the ALJ either applies an incorrect legal standard or fails to demonstrate reliance on the correct legal standards. Id. (citing Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996)). But, in all cases, the Court may not re-weigh the evidence nor substitute its judgment for that of the ALJ. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (citing Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)).

         ALJ's ...

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