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Bowe v. Berryhill

United States District Court, D. Colorado

December 15, 2017

MELANIE ANNE BOWE, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.[1]

          OPINION AND ORDER VACATING DECISION AND REMANDING CLAIM

          Marcia S. Krieger Chief United States District Judge.

         THIS MATTER comes before the Court pursuant to the Plaintiff's appeal from the decision of the Defendant Commissioner of Social Security, denying her application for benefits.

         In considering the matter, the Court has reviewed the Administrative Record (# 14), and the parties' briefing (# 19, 21, 24).

         JURISDICTION

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

         FACTS

         The Court briefly summarizes the pertinent facts and procedure here, and elaborates as necessary in its analysis.

         At the time of her application for disability benefits in 2012, Ms. Bowe was 40 years old. She had two years of college education and lived with her 12-year old son and her mother. She had previously worked as a bridal consultant, and also had experience as an executive assistant, a Human Resources manager, and a manager of an auto parts store, among other things. She claimed a disability onset date of 2011, [2] complaining primarily of fibromyalgia, rheumatoid arthritis, migraine headaches, and emotional disorders including depression and anxiety.

         Ms. Bowe testified at the hearing that, due to these various maladies, she could concentrate on a given task for 30 minutes to an hour, that she could lift 5-10 lbs., could walk “about a block, ” could stand for 20-40 minutes and sit for the same period before needing to change positions. She testified that she experienced disabling migraines approximately 3 times per month, each lasting for a full day. She has irregular anxiety attacks that she attributes to stress and which require her to spend time alone to recover from. She did not cook, beyond preparing frozen foods for herself. She went grocery shopping six times per month, but did so in the morning or evening to avoid crowds. She reported that this was effectively the only time she left the house, and that she spent 97% of her time in her room. She socialized only with her mother, her 12-year old son, and a friend, all of whom live in the same house with her.

         However, in a March 2013 Functional Report, Ms. Bowe reported that she “tr[ies] to get outside everyday at least for some air and sun, ” that she will drive up to 10 miles, that she goes grocery shopping “a couple of times a week, ” stated that she handles stress “very well - I become completely calm, deal with it, and move on” (although she also stated that she “internalizes it” which is “why I'm sick”), and that she can handle changes in routine because “I can always handle anything, I have been through just about everything you can imagine.”

         Treating providers offered several opinions:

• Dr. Lutt, a rheumatologist, opined that Ms. Bowe should avoid stressful situations, repetitive motion activities, and jobs that require her to remain in one position for more than an hour. Dr. Lutt also stated that Ms. Bowe would require an understanding and flexible employer that could accommodate some absenteeism due to fibromyalgia flare-ups, doctor appointments, and unscheduled breaks to change positions.
• Dr. Zacharias, a neurologist, opined that Ms. Bowe averages three disabling headaches per week, each lasting an entire day. She also opined that any employer would have to accommodate absenteeism on that frequency due to such headaches. Dr. Zacharias further opined that Ms. Bowe would need unscheduled breaks, would have to avoid stressful situations, avoid environmental extremes of heat and cold, avoid bright or flashing lights or sustained computer work.
• Dr. Dowdy, Ms. Bowe's family practitioner, opined that she was unable to do any physical work and must spend the majority of her time resting in bed. Dr. Dowdy stated that Ms. Bowe has migraine headaches for at least 10 days per month which last up to 3 days, and that she is unable to drive due to seizures. Dr. Dowdy opined that any employer would have to be flexible to accommodate absenteeism and unscheduled breaks, that Ms. Bowe would have to avoid computer work, bright or florescent lights, odors, fumes, or heat. Dr. Dowdy also opined that Ms. Bowe should avoid walking, should not stand or sit for more than 30 minutes, and should not interact with people.
• Ms. DuMond, a social worker, [3] opined that Ms. Bowe would require an employer flexible on absenteeism, hours, and unscheduled breaks, and that Ms. Bowe should avoid full- time and fast-paced work, work that involves continual exposure to the public, or work that is socially over-stimulating. However, some treatment records show greater functional capability. For example, In June 2014, after undergoing several therapy sessions, Ms. Bowe reported that “She [is] going out into the world more and more, relating to her goal of not be[ing] as afraid and being less anxious about driving; she now has her driver's license, she is participating in activities outside the home with her son and walking.” At a treatment session in May 2014, she reported that she had accomplished a therapy objective of taking an online class. Ms. DuMond noted that Ms. Bowe's “strength is home schooling her son and helping him with his emotional life.”

         The record also reflects the following opinions of consulting experts:

• Dr. Moran, a consultative physician, opined that Ms. Bowe could alternate standing, sitting, and walking as needed for a total of 8 hours per day, could lift and carry 20 lbs., and could do repetitive motions.
• Dr. Lipson, an examining psychologist, opined that Ms. Bowe had, in general, a mild impairment in her ability to maintain productive employment. He rated her as markedly impaired in the activities of remembering complex instructions and maintaining persistence on complex tasks; as moderately impaired in interacting with the public and supervisors, in responding to criticism and adapting to changes in routine, in maintaining pace on complex tasks, in remembering simple instructions, and in maintaining persistence on simple tasks; and as mildly impaired in maintaining pace on simple tasks, on maintaining concentration on complex tasks, and on interacting with supervisors. He opined that she had no impairments in comprehending simple instructions, attending to simple repetitive tasks, and sustaining concentration on simple tasks. He also noted that Ms. Bowe would have moderate impairments in her ability to keep to a schedule, maintain attendance, be punctual, adapt to the work environment, and complete a normal work day without special or additional supervision.
• Dr. Glasco, a psychiatrist, opined that Ms. Bowe can perform work not involving significant complexity or judgment, but should ...

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