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Maron 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, Jean Mary Maron, appeals from the Social Security Administration (“SSA”) Commissioner's final decision denying her application for disability insurance benefits, filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-33. 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 in its determination of this appeal. Because the ALJ failed to properly analyze the evidence in the medical record at step three, the Court reverses the Administrative Law Judge's (“ALJ”) decision and remands this case to the Commissioner for further proceedings.[1]


         I. Procedural History

         Plaintiff alleges she first became disabled on November 1, 2012, after which she has not engaged in any substantial gainful employment. [AR 120]. The SSA initially denied Plaintiff's application for disability benefits on June 16, 2014. [AR 70-77]. At Plaintiff's request, an ALJ scheduled a hearing for August 17, 2015. [AR 93]. Plaintiff and a vocational expert testified at the hearing. [AR 27-48]. On August 28, 2015, the ALJ issued a written ruling, which found Plaintiff was not disabled since November 1, 2012. [AR 11-18]. According to the ALJ, although Plaintiff has severe impairments, they do not meet the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. [AR 13-17]. Furthermore, the ALJ found that, despite Plaintiff's limitations, she is capable of performing her past work as a receptionist. [AR 17-18]. The SSA Appeals Council subsequently denied Plaintiff's 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 ALJ/Commissioner's final decision. ECF No. 1.

         II. Plaintiff's Conditions

         Plaintiff was born on August 25, 1955; she was fifty-eight years old when she filed her application for disability benefits. [AR 120]. Plaintiff claims she became disabled on November 1, 2012 due to constant pain in her legs, knees, neck, and lower back. [AR 170]. The relevant portion of Plaintiff's medical history begins in November 2011, when a doctor at Littleton Adventist Hospital performed a bone density exam and diagnosed Plaintiff with osteoporosis. [AR 249].[2]Then, on December 8, 2011, Plaintiff reported to the same hospital with complaints of “leg pain, flank pain, and dysuria.” [AR 251]. The doctor concluded that Plaintiff's pain was associated with the fact that she was “relatively immunosuppresed by being on prednisone chronically for Cushing syndrome.” [AR 254]. Because Plaintiff continued to report pain, she underwent an X-ray of her hips on September 21, 2012. [AR 284]. The X-ray revealed “no acute fracture” and “no acute osseous abnormality.” [Id.] Plaintiff also received an X-ray of her lumbar spine on October 16, 2012, which showed normal results other than mild arthritic changes. [AR 283].

         Also in October 2012, Plaintiff began seeing a rheumatologist, Dr. Anita Zachariah, for muscle pains, fatigue, weakness, and tingling or numbness. [AR 635-71]. Because Dr. Zachariah believed that Plaintiff's pain may have been due to lumbar radiculopathy, she ordered Plaintiff to undergo an MRI. [AR 638]. The MRI revealed, inter alia, that Plaintiff had mild degenerative desiccation in the C5-6 and C6-7 discs, broad annular bulge and or disc protrusion at ¶ 5-6, and “small left paracentral and lateral focal disc protrusion at ¶ 6-7, which distorts the left anterolateral thecal sac.” [AR 631]. After reviewing the results of the MRI on November 9, 2012, Dr. Zachariah stated that the MRI “showed mild disc herniation.” [AR 635]. Although Plaintiff continued to complain of muscle weakness and fatigue, Dr. Zachariah's November 9, 2012 physical examination noted no abnormalities other than a positive straight leg raise test and a positive Tinel's sign for carpel tunnel syndrome. [AR 637]. Neither Plaintiff nor Dr. Zachariah noted any changes to Plaintiff's conditions during a December 14, 2012 visit.[3] [AR 639-43].

         On February 22, 2013, Dr. Amelia Scott Barrett examined Plaintiff for bulging discs and leg pain. [AR 335]. Dr. Barrett concluded that Plaintiff “presents with right leg weakness and pain that may be due to a lumbar radiculopathy.” [AR 337]. Accordingly, Dr. Barrett ordered an MRI and physical therapy to treat cervical disc herniation. [Id.] After reviewing the results, Dr. Barrett concluded the MRI showed no abnormalities. [AR 339].

         Because Plaintiff also complained of hip pain, Dr. Barrett refereed Plaintiff to Dr. Craig Loucks, an orthopedic surgeon, who ordered an MRI of Plaintiff's hip. [AR 339, 362-64]. The MRI revealed osteoarthritic changes of the right hip and tearing of the labrum. [AR 376]. Dr. Loucks concluded that the images of Plaintiff's hip were “fairly impressive, ” and “certainly account for her ongoing pain that is affecting her quality of life as well as her activities of daily living.” [AR 361]. Accordingly, Dr. Loucks performed a right total hip arthroplasty on July 30, 2013. [AR 361, 369-71]. Thirteen days after the surgery, a physician's assistant noted that, although Plaintiff is still walking with a cane, she is “doing very well”overall [AR 360]. During a subsequent follow-up appointment on September 13, 2013, Plaintiff stated that “her hip is feeling reasonably well.” [AR 358]. By her October 2013 follow-up, Plaintiff had no pain in the hip joint and was “thrilled with the results of the hip replacement.” [AR 357].

         However, also in the fall of 2013, Plaintiff began reporting severe knee pain, and that “her fibromyalgia is flaring all over now . . . .”[4] [AR 652, 659]. Accordingly, Dr. Loucks ordered an MRI of Plaintiff's knee on October 14, 2013. [AR 365]. The imaging revealed no internal derangement other than mild cartilage degeneration and probable denervation at the lateral head of her gastroc, soleus, and anterolateral musculature. [AR 357]. Dr. Loucks noted that some of Plaintiff's neurological symptoms seemed “bizarre, ” but stated that this was better left to her neurologist and rheumatologist. [Id.]

         When Plaintiff returned to Dr. Zachariah on December 20, 2013, Dr. Zachariah stated that Plaintiff was “doing well on her regimen now.” [AR 662-66]. On February 24, 2014-Plaintiff's last recorded visit with Dr. Zachariah-Plaintiff noted that her pain is intermittent, depending on her activity. [AR 667].

         Plaintiff visited Dr. Laura Moran for a consultative evaluation on June 5, 2014. [AR 682-85]. After examining Plaintiff and reviewing her records, Dr. Moran concluded that Plaintiff “can alternate activities of sitting, standing, and walking as needed for her comfort for a total of 8 hours per day. She can lift and carry about 20 pounds. She is able to bend. She is unable to squat. She is able to . . . do all daily self-care activities.” [AR 652].

         Dr. Zachariah completed medical source questionnaires in July 2014 and June 2015.[5] [AR 688-702]. In the first statement, Dr. Zachariah noted that Plaintiff had chronic moderate to severe fibromyalgia, neuropathy, and back pain. [AR 668]. She also stated that Plaintiff could not sit or stand for longer than thirty minutes at one time, and Plaintiff would have to take five minute breaks every thirty minutes. [AR 689-90]. Accordingly, Plaintiff would be off task approximately 15% of the work day, and she would be absent from work about three days per month. [AR 691]. In the June 2015 statement, Dr. Zachariah increased the time of Plaintiff's required breaks from five minutes to twenty minutes each, and noted that Plaintiff could not sit for more than one hour total in any given workday. [AR 700]. Finally, Dr. Zachariah believed Plaintiff would have to miss up to four days of work per month. [AR 702].

         III. Hearing Testimony

         A hearing was held before an ALJ on August 17, 2015. [AR 25-49]. Plaintiff and a vocational expert testified at the hearing. [Id.] Plaintiff first stated that her osteoarthritis, osteoporosis, muscle atrophy, degenerative disc disease, and fibromyalgia are causing her significant pain and fatigue, which keep her from working. [AR 29-30]. Regarding the fatigue, Plaintiff testified that, “[s]ome days I don't shower. I don't dress. It's hard to do even a few chores around the house. I get worn down, and there are days I can't even get across the street to say hi to a neighbor.” [AR 30].

         Plaintiff also testified about her work history as a receptionist for an optometrist. [AR 33]. Plaintiff stated that she worked for ten years “checking patients in and out, taking copays and money, charting, scheduling, pulling files, scanning, [and] phones.” [Id.] Although she stopped working regularly in November 2012, Plaintiff testified that her employer held the job open for her until January 2013. [AR 34]. Because Plaintiff was in so much pain that she could not leave the house, her employer eventually asked her to resign. [Id.]

         Plaintiff then discussed her ability to conduct activities of daily living. [AR 36-38]. According to Plaintiff, she wakes up between 6:30 a.m. and 9:00 a.m. and makes breakfast if “there's something easy to fix.” [AR 36]. Then, Plaintiff does dishes, but usually is in too much pain to do all of them. [Id.] She generally tries to do laundry and pay bills, but often feels as though she cannot be active for more than three or four hours of the day. [Id.] Plaintiff stated that she “very rarely drive[s] [herself] anywhere” because of her blurred visions and the pain she experiences when getting in and out of the car. [AR 36-37].

         The ALJ then posed a series of hypotheticals to the vocational expert. [AR 41]. First, the ALJ asked the expert to consider whether an individual who is limited to light exertional work with occasional posturals could maintain employment as a receptionist. [Id.] The vocational expert responded that the hypothetical individual could perform that job. [Id.] The ALJ then asked the expert whether an individual who is limited to light work and frequent handling, fingering, and feeling with both upper extremities could work as a receptionist. [Id.] The vocational expert again responded in the affirmative. [Id.] For the third and fourth hypotheticals, the ALJ posed the same limitations as hypotheticals one and two, except he changed the exertional level to sedentary. [AR 41-42]. The expert testified that both individuals could maintain employment as a receptionist. [AR 42].

         Counsel for Plaintiff then examined the vocational expert. [AR 42-46]. First, counsel asked the expert whether an individual who is required to take three to four twenty minute breaks per day could perform work as a receptionist. [AR 44]. According to the expert, this person could not maintain employment. [Id.] Additionally, the expert testified that an individual who would be off task more than 25% of ...

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