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Boyd v. Berryhill

United States District Court, D. Colorado

October 30, 2017

MARK L. BOYD, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          ORDER

          Michael E. Hegarty, United States Magistrate Judge.

         Plaintiff Mark Lester Boyd appeals from the Social Security Administration (“SSA”) Commissioner's final decision denying his application for disability and disability insurance benefits (“DIB”), 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.

         BACKGROUND

         I. Procedural History

         Plaintiff seeks judicial review of the Commissioner's decision denying his application for DIB filed on March 14, 2014. [Administrative Record (“AR”) 52, 66] After the application was denied on July 31, 2014 [AR 66-68], an Administrative Law Judge (“ALJ”) scheduled a hearing at the Plaintiff's request for January 27, 2016 [AR 98-123], at which Plaintiff was represented by counsel, and the Plaintiff and a vocational expert testified. [AR 36-50] The ALJ issued a written ruling on February, 112016 finding Plaintiff was not disabled starting on August 8, 2013 through February 11, 2016 because Plaintiff's impairments and residual functional capacity did not prevent him from performing his past relevant work as an automobile mechanic. [AR 21-35] On January 24, 2017, 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 February 10, 1956; he was 58 years old when he filed his application for DIB on March 14, 2014. [AR 52] Plaintiff claims he became disabled on August 8, 2013 [AR 131] and reported that he was limited in his ability to work due to chronic back pain, gouty arthritis, osteoarthritis, and degenerative disc disease. [AR 41, 230] Plaintiff completed a “Function Report” in tandem with his application, in which he explained that once every couple of months his “conditions have made it impossible to work” because “[he] is bed-ridden and can't stand or walk without using crutches” or “can't use his hands to pick anything up.” [AR 181] He also stated that he had difficulty sleeping and putting on pants due to pain; he could prepare easy meals, mow the lawn, and wash the car; and “can't walk more than 100ft without pain.” [182-186]

         The record dates back to October 2012, at which time Plaintiff was treated by Gregory Jaramillo, M.D. for gouty arthritis. [AR 249] Plaintiff reported he had gout flares every three months, which generally affected his knees and wrist, he had wrist surgery five years previously following a bad wrist flare, and his medications had worked well. [AR 249] Dr. Jaramillo prescribed Plaintiff medication for gouty pain and inflammation. [AR 250] On December 17, 2013, Plaintiff saw Dr. Jaramillo because of gout pain in his right hand and right foot, unintentional weight loss, and bowel irregularities. [AR 246] Plaintiff followed up with Dr. Jaramillo on March 3 and 5, 2014 for symptoms related to arthritis and a leg infection resulting from a lesion sustained at work. [AR 280-282] Dr. Jaramillo noted that the infection improved after antibiotic treatment. [AR 280-282]

         On March 8, 2014, Plaintiff presented to the emergency department at Longmont United Hospital complaining that he had bilateral knee pain from his recurrent gout, he was unable to walk with crutches, and he ran out of his indomethacin (medication for inflammation and pain), which Plaintiff said seemed to work well. [AR 257, 259] The attending physician, Herbert Ogden, M.D., found both of Plaintiff's knees were slightly swollen with decreased range of motion, and the symptoms were consistent with an acute flare of Plaintiff's known gouty arthritis. [AR 258] According to Dr. Ogden, Plaintiff felt better after receiving medication, he was able to ambulate with crutches, and there was no indication of septic joint, occult fracture, or compartment syndrome. [AR 258] While at a followup visit later that month for his leg ulcer, Plaintiff asked Dr. Jaramillo to complete a functional residual capacity form for purposes of securing disability benefits. [AR 244]. Thereafter, on July 3, 2014, Plaintiff reported gout and arthritic pain complaints to Jonathan Manto, PA-C, who performed a knee joint aspiration to relieve the pain. [AR 273-274]

         On July 28, 2014, Plaintiff presented to John Mars, M.D. for a physical consultative examination. [AR 264] Plaintiff reported he had been diagnosed with gout ten years previously; the gout attacks occurred every two to three months and usually affected his knees, sometimes affected his elbows and wrists, and were severely painful; he had gout flares while on medication (allopurinol specifically); he had a lumbar discectomy approximately ten years previously; he suffered from osteoarthritis which affected his hands and lower back; and, he was able to dress, bathe, cook, shop, and walk three to four blocks at a time without resting. [AR 264] After a thorough physical examination, Dr. Mars diagnosed Plaintiff with a history of gout and osteoarthritis, and found Plaintiff should avoid ladders and scaffolds due to the osteoarthritis, but he could stand, walk, climb stairs, and sit without limitations; could handle objects and use his feet for foot controls; could kneel, balance, stoop, crawl and crouch; and could lift and carry forty pounds occasionally and thirty pounds frequently, limited by his osteoarthritis. [AR 266] That same day, x-rays of Plaintiff's knees revealed “[i]nferior patellar spurring” and probable joint effusion in his left knee, and “minimal superior patellar spurring” in his right knee. [AR 267]

         On July 31, 2014, a Medical Consultant for the SSA, K. Terry, M.D., completed a physical residual functioning capacity (RFC) assessment for Plaintiff finding that Plaintiff could occasionally lift and/or carry fifty pounds and frequently lift and/or carry twenty-five pounds; sit, stand, and/or walk for six hours of an eight-hour workday; had postural and manipulative limitations; had no communicative or visual limitations; and was to avoid concentrated exposure to extreme heat, wetness, humidity, and machine hazards. [AR 59-61]

         In August 2014, Plaintiff reported to P.A. Manto that his knee had “greatly approved” since the aspiration procedure, but he had “some lower back and mid back pain for the past 6 months” and “left foot pain when he walks as well.” [AR 270] Plaintiff visited the Longmont Emergency Department on August 28, 2014 after falling and was diagnosed with a fractured left clavicle and left little finger. [AR 301-307] In September 2014, Plaintiff saw Gerald Rupp, M.D. for post fracture evaluation and reported mild pain, swelling, stiffness, muscle cramps, and muscle weakness. [AR 338] Dr. Rupp found swelling and decreased range of motion in Plaintiff's left shoulder. [AR 339] Thereafter, Plaintiff received treatment at the Longmont Clinic from Curtis Leonard, M.D. [AR 310-312, 333-337] Dr. Leonard noted a mid-shaft clavicle deformity; localized swelling; movement was painful; and, believed Plaintiff may be working too hard at work. [AR 336] Regarding Plaintiff's spine, Dr. Leonard reported no deformities; no pain and full range of motion; and normal strength. [AR 336] A diagnostic imaging report of Plaintiff's spine, however, revealed significant foraminal stenosis, mild to moderate canal stenosis at ¶ 5-6 and C6-7, and mild right foraminal stenosis at ¶ 3-4. [AR 309]

         In October 2014, Plaintiff reported decreased pain in his clavicle and finger, but increasing pain in his left shoulder, which Dr. Leonard suspected was the result of a rotator cuff tear. [AR 313-314] Dr. Leonard ordered a magnetic resonance imaging (MRI) scan of Plaintiff's left shoulder, which showed a partial tear of the rotator cuff and degenerative change of the anterior superior labrum. [AR 314, 320-21]

         On Dr. Leonard's recommendation, Plaintiff presented to Robert Fitzgibbons, M.D. on November 10, 2014 for treatment of his left shoulder. [AR 326-327] Plaintiff reported moderate left shoulder pain, aggravated by movement or lifting, and decreased range of motion in his left shoulder. [AR 326] Dr. Fitzgibbons's findings indicated painful shoulder movement and decreased results in shoulder resisted strength testing, but no sign of pain or decreased range of motion in Plaintiff's spine. [AR 327] In January 2015, Dr. Fitzgibbons reported Plaintiff's shoulder abduction was restricted and painful; forward flexion and internal rotation did not cause pain; full strength in both shoulders; and unremarkable findings related to Plaintiff's spine. [AR 325] Dr. Fitzgibbons also noted that during Plaintiff's next visit, he would evaluate whether Plaintiff had full range of motion in his left shoulder. [AR 325]

         III. Hearing Testimony

         At a hearing on January 27, 2016, Plaintiff (who appeared with counsel) and a vocational expert, Ashley Briars, testified. [AR 36-50] Plaintiff testified that until two and a half years ago he had always worked as an automobile mechanic at repair shops; he stopped working because he “couldn't do it anymore”; he was not supposed to lift more than ten pounds because of degenerative disc disease; he had to lie down for an extended period of time after lifting more than ten pounds; he had back surgery in the nineties and the doctor told him not lift more than fifteen pounds; he worked for another fifteen to twenty years after his back surgery; he could sit for forty-five minutes, stand for fifteen minutes, and walk between half and three quarters of a block; he did exercises at home; he lived with his wife in a house; he mowed the lawn, washed the car, shoveled snow, and cleaned the garage; he could lift his left arm to shoulder level, but not higher; he was suffering pain in his neck, between his shoulder blades, and in his back from pinched nerves; he could sleep only two hours at a time before the back pain awakened him; his collar bone had healed; and, he had a pretty high pain tolerance because he was a mechanic. [AR 39-46]

         The ALJ then turned to the vocational expert, Ms. Briars, who testified that Plaintiff acquired skills in his past work that transfer to one occupation at the light level, but not any occupations at the sedentary level. [AR 47] The only occupation Plaintiff's acquired skills would transfer to at the light level was a tune-up mechanic, which Ms. Briars described as “a very small portion of what [Plaintiff] was doing as an auto mechanic with regards to tuning up vehicle engines to ensure efficient operation.” [AR 47-48] Specifically, Plaintiff's knowledge and skills in making adjustments; cleaning certain parts; making cars run efficiently; and using tools such as a fuel analyzer, vacuum gauge, and tachometer were transferrable to a tune-up mechanic. [AR 48] At the conclusion of Ms. Briars testimony, Plaintiff's counsel asked the ALJ if he could ask Ms. Briars whether Plaintiff can lean over an engine wall all day and tune up a car. [AR 48] Both Ms. Briars and the ALJ declined the request; and the ALJ informed Plaintiff's counsel that Ms. Briars could not testify to Plaintiff's physical capabilities. [AR 48]

         During closing remarks, Plaintiff informed the ALJ that he had been performing tune ups since he was twelve years old, bending over the grill and fenders caused him pain, and he owned over one hundred thousand dollars worth of tools, but had not used any of the tools in his garage during the last three years. [AR 49]

         The ALJ issued an unfavorable decision on February 11, 2016. [AR 21-35]

         LEGAL STANDARDS

         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. ...


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