United States District Court, D. Colorado
T. BABCOCK, JUDGE.
Archie Hines appeals the final decision of the Acting
Commissioner of Social Security (“SSA”) denying
his application for disability insurance benefits and
supplemental security income under Titles II and XVI of the
Social Security Act, 42 U.S.C. §§ 401-34, 1381-85.
I have considered the parties' briefs (ECF Nos. 22-24)
and the administrative record (ECF No. 18)
(“AR”). Oral argument would not materially assist
me in determining this appeal.
Hines argues the administrative law judge (ALJ) erred by
inadequately developing the record, failing to correctly
assess all of his medical impairments, improperly weighing
his subjective complaints, and wrongly determining he has
past relevant work as a customer service representative.
Because I agree the ALJ should have obtained and considered
medical records from when Mr. Hines was in the custody of the
Colorado Department of Corrections, I do not reach Mr.
Hines's other arguments. I accordingly REVERSE the
SSA's decision and REMAND this case for proceedings
consistent with this opinion.
Hines received disability insurance benefits and supplemental
social security income from July 1993 until April 2006 based
on a spine injury he sustained in a bus accident. AR 248,
262. After a continuing disability review in 2007, SSA found
that Mr. Hines had medically improved and ended his benefits.
December 2011, Mr. Hines filed a new application for
disability insurance benefits and supplemental social
security income with SSA, alleging disability beginning
December 1, 2009. AR 233-45. After SSA initially denied his
claim, AR 127-32, Mr. Hines requested a hearing before an
ALJ, AR 133-37. The hearing took place on July 9, 2013. AR
62-81. On August 12, 2013, the ALJ denied Mr. Hines's
claim, concluding he was not disabled within the meaning of
the Social Security Act. AR 104-23. Mr. Hines asked SSA's
Appeals Council to review the ALJ's decision. AR 208. On
September 29, 2014, the Appeals Council remanded the case to
the ALJ because the ALJ's decision was based in part on
earnings records that were not Mr. Hines's. AR 124-26.
February 27, 2015, the ALJ held another hearing. AR 39-61. On
June 16, 2015, the ALJ again denied Mr. Hines's claim. AR
16-38. Mr. Hines again asked SSA's Appeals Council to
review the ALJ's decision. AR 13. On August 25, 2016, the
Appeals Council denied review, AR 5-10, making the ALJ's
decision the final decision of SSA, see Doyal v.
Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). On
November 22, 2016, Mr. Hines timely filed this appeal. (ECF
No. 1.) I have jurisdiction pursuant to 42 U.S.C. §
Hines represented himself throughout the administrative
proceedings. He claimed he was disabled beginning on December
1, 2009, based on the same 1993 cervical spine injury that
formed the basis of his prior disability award (from July
1993 until March 2006). He was injured when the bus he was
riding was in an accident and he was thrown from his seat,
hitting his back. AR 411. After his prior disability award
ended, Mr. Hines became homeless. AR 234. However, Mr. Hines
continued to receive some medical treatment for his spinal
March 2009, Mr. Hines saw Dr. Mark McLean and complained of
chronic pain in his joints, back, and neck. AR 370. Dr.
McLean diagnosed him with torticollis (a condition in which
the neck muscles contract, causing the head to twist to one
side) and noted his history of chronic back pain. AR 371. In
September 2009, Mr. Hines saw Jaime Lynne Vader, a
physician's assistant, and complained he could barely
turn his head and suffered from chronic neck and back pain.
AR 365. Ms. Vader observed that Mr. Hines had significantly
decreased range of motion in his neck, decreased strength in
his shoulders, “tight spasmed muscles in neck and back,
” and could not lift his arms above 80 degrees. AR 366.
Ms. Vader conducted a “disability examination”
and concluded that Mr. Hines “would definitely need
employment with significant modifications but could possibly
work a few hours from home.” AR 366. Ms. Vader
prescribed Flexeril for Mr. Hines's back pain.
Hines returned to Ms. Vader in March and April 2010, still
complaining of back and neck pain, which he described as
“always a 10.” AR 358-64. He told Ms. Vader that
using marijuana helps his pain. AR 359. Ms. Vader prescribed
him Tylenol with codeine for the pain. AR 363. She also
completed a “Med 9” form (a form used by the
State of Colorado to determine whether someone is disabled
and eligible for benefits). AR 360.
next medical record from Ms. Vader is almost two years later,
in January 2012, because Mr. Hines had been in custody for a
parole violation. AR 390. At that visit, Ms. Vader noted that
Mr. Hines received medical care in prison, continuing to take
his medications for his spinal injury and high blood
pressure. Id. Ms. Vader explained that their
long-term goal was to get his pain to a 4/10, not to
eliminate it completely. AR 355. Following this initial visit
to reestablish care after he was released, Mr. Hines
continued to regularly see Ms. Vader for treatment.
E.g., AR 397 (July 2013 letter concluding that Mr.
Hines's chronic neck and back pain and degenerative disc
disease “interferes with his ability to get up and be
active and work” that the condition was “chronic
and not expected to get better”); AR 535-36 (March 2014
visit and refill on pain medication); AR 506 (December 2014
visit adjusting pain medication) AR 540 (August 2014 record
adjusting pain medications); AR 505 (December 2014 record
where Mr. Hines reported increased pain to his right lower
back and pain radiating down his right leg); AR 501 (February
2015 visit where Ms. Vader prescribed the maximum dose of
gabapentin, and documented his other current medications,
including a lidocaine patch (to treat pain) and tiasanidine
(a muscle relaxer)).
2012, as part of the administrative proceedings, two
physicians opined on Mr. Hines's impairments. Dr. Linda
Mitchell performed a consultative examination. AR 373-77. Dr.
Mitchell concluded that Mr. Hines could stand or walk for
about four hours in an eight hour workday, with positional
changes every 30 minutes, and that he should avoid squatting,
crouching, or kneeling, AR 377, which would restrict Mr.
Hines to sedentary work. She also concluded he could
frequently lift 20 pounds and occasionally lift 50.
Id. Dr. Mitchell also observed that Mr. Hines
exhibited more mobility on casual examination than direct
observation. AR 375. A state agency physician reviewed Dr.