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Allen v. Berryhill

United States District Court, D. Colorado

November 17, 2017

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


          Marcia S. Krieger United States District Court.

         THIS MATTER comes before the Court on the Plaintiff's Complaint (# 1), the Plaintiff's Opening Brief (# 16), the Defendant's Response (# 19), and the Plaintiff's Reply (# 22). For the following reasons, the Commissioner's decision is reversed and the matter is remanded for further proceedings.


         The Court has jurisdiction over an appeal from a final decision of the Commissioner under 42 U.S.C. § 405(g).


         A. Procedural History

         Tina Allen seeks judicial review of a final decision by the Commissioner denying her claim for disability insurance benefits (DIB) and supplemental security income (SSI) under the Social Security Act. In March 2013, Ms. Allen filed for both DIB and SSI, claiming she became disabled on October 1, 2012. Tr. at 145-60. Her application was denied at all administrative levels and she now appeals to this Court pursuant to 42 U.S.C. § 405(g).

         B. Factual Background

         At the time of her alleged onset of disability, Ms. Allen was 38 years old and working out of her home, washing laundry for other residents of her apartment building. Tr. at 145, 230. She was previously employed as a cashier and a receptionist. Tr. at 201-08. Generally, Ms. Allen is obese and suffers from headaches, back pain, diabetes, depression, and asthma. Because the challenges on appeal focus only on physical limitations, the Court summarizes only the medical evidence relevant to its decision.

         Ms. Allen's headaches first appear in the record in February 2013 when Ms. Allen presented to physician's assistant Elizabeth Madrid, complaining of headaches in the crown of her head that were getting more frequent. She told P.A. Madrid that Ibuprofen helped some. P.A. Madrid gave her a trial of Sumatriptan. Tr. at 305. Ms. Allen returned in March 2013 for further treatment for her headaches. P.A. Madrid treated her with Ibuprofen. Tr. at 299. Ms. Allen's headaches are not mentioned in treatment notes from visits to P.A. Madrid from July to October 2013. In November 2013, Ms. Allen reported to P.A. Madrid that the Sumatriptan helps some but not completely. Tr. at 502. The record does not contain any evidence of Ms. Allen's headaches for visits to P.A. Madrid in December 2013 or January 2014. Tr. at 488, 494. In February 2014, Ms. Allen reported to P.A. Madrid that the sumatriptan usually helped with headaches not the most recent one. In March 2014, P.A. Madrid noted an exacerbation in Ms. Allen's headaches and increased her sumatriptan. Tr. at 478. In April 2014, Ms. Allen's headaches are listed as a diagnosis for which P.A. Madrid ordered a neurological referral. Tr. at 468. After that, Ms. Allen made three visits to P.A. Madrid without any mention of headaches. Tr. at 442, 449, 459.

         To combat her obesity, Ms. Allen engaged tried exercise and to lose weight. In late 2013, Ms. Allen reported that she was walking on a treadmill for 15 minutes a day, watching what she ate, and started participation in a diabetes weight-loss group at the hospital. Tr. at 494, 502, 509. P.A. Madrid offered encouragement. Tr. at 494, 502. In January 2014, P.A. Madrid found progress and better control of Ms. Allen's weight loss. Tr. at 488. In July 2014, Ms. Allen reported that she had not been walking or exercising due to pain. Tr. at 449. In August 2014, P.A. Madrid noted that Ms. Allen was walking with a cane. Tr. at 442.

         Only two medical opinions addressed Ms. Allen's physical functional limitations, one by her treating physician and physician assistant, Dr. Askenazi and P.A. Madrid, in August of 2014, Tr. at 432-37, and one by Dr. Claudia Elsner, a consulting, examining physician. Tr. at 420-24.

         Dr. Askenazi opined that Ms. Allen was limited to occasionally lifting and carrying up to 10 pounds, to sitting without interruption for 20 minutes, and to standing and walking without interruption for 10 minutes. Tr. at 432-33. In an eight-hour workday, he observed that she could sit and walk for a total of two hours, and stand for a total of one hour. Tr. at 433. Dr. Askenazi stated that Ms. Allen required the use of a cane to ambulate and could not walk more than a block without it. Tr. at 433. These conclusions were supported by an MRI study that showed canal stenosis and severe degenerative facets between L4 and L5, as well as a disc bulge. Tr. at 433. Dr. Askenazi opined that Ms. Allen would be limited to never reaching or pushing/pulling and to occasionally handling, fingering, and feeling due to decreased sensation in both hands. Tr. at 434. He stated that she could never operate foot controls because of her neuropathy. Tr. at 434. Dr. Askenazi opined that Ms. Allen cannot engage in any postural activities, such as climbing, balancing, or crouching. Tr. at 435. He observed that she cannot tolerate any environmental factors, such as unprotected heights, humidity and wetness, or extreme temperatures because her condition is worsened by such factors. Tr. at 436. Due to her neuropathy, Dr. Askenazi further opined that Ms. Allen could not go shopping, travel, ambulate on her own power, use public transportation, or sort papers, but could prepare simple meals and care for her personal hygiene, though she needs help doing so. Tr. at 437.

         Dr. Elsner diagnosed Ms. Allen as suffering from with grade-3 obesity, diabetes mellitus type 2, and chronic lower back pain with documented degenerative joint disease plus lumbar spondylolisthesis. Tr. at 423. In her examination, Dr. Elsner found that Ms. Allen moved fluently in spite of her habitus, stood and walked normally without a limp. Tr. at 422. She also observed Ms. Allen could straight-leg-raise to 80 degrees, but reported immediate buttock pain on the right side over the sciatic spine. Tr. at 422. The range of motion in her cervical spine had commensurate extension and rotation with lateral bending without distress. Tr. at 423. Dr. Elsner also found some decreased internal hip rotation but thought it was conditional. Tr. at 423. Based on these findings, Dr. Elsner opined that Ms. Allen should limit standing to a maximum of about 10 minutes at a time, interrupt sitting every hour, and frequently change posture. Tr. at 423. Dr. ...

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