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Hines v. Berryhill

United States District Court, D. Colorado

January 5, 2018

ARCHIE HINES, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          LEWIS T. BABCOCK, JUDGE.

         Plaintiff 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.

         Mr. 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.

         I. Background

         A. Procedural History

         Mr. 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. AR 103.

         In 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.

         On 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. § 405(g).

         B. Facts

         Mr. 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 injury.

         In 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. Id.

         Mr. 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.

         The 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)).

         In 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. ...


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