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Ho v. Berryhill

United States District Court, D. Colorado

January 24, 2018

TONY HO, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          OPINION AND ORDER REVERSING AND REMANDING DISABILITY DETERMINATION

          Marcia S. Krieger United States District Court

         THIS MATTER comes before the Court as an appeal from the Commissioner's Final Administrative Decision (“Decision”) determining that the Plaintiff Tony Ho is not disabled within the meaning of §§216(i) and 223(d) of the Social Security Act. Having considered all of the documents filed, including the record (#14), the Court now finds and concludes as follows:

         JURISDICTION

         The Court has jurisdiction over an appeal from a final decision of the Commissioner under 42 U.S.C. § 405(g). Mr. Ho sought disability insurance benefits Title II of the Social Security Act based on physical impairments that rendered him unable to work as of February 12, 2011. The state agency denied his claim. He requested a hearing before an Administrative Law Judge (“ALJ”), who issued an unfavorable decision. Mr. Ho appealed to the Appeals Council, which denied his request for review, making the ALJ's determination the final decision of the Commissioner. Mr. Ho timely appealed to this Court.

         STATEMENT OF FACTS

         The Court offers a brief summary of the facts here and elaborates as necessary in its analysis.

         Mr. Ho was born on March 10, 1970. He obtained his GED, attended beauty school, and has worked as a manicurist. He contends that physical impairments prevent him from working.

         In February 2011, Mr. Ho fell down several steps, hit his head, and lost consciousness. He was diagnosed with cervical central cord syndrome and spinal stenosis with myelopathy and underwent C3-7 posterior laminectomy and fusion surgery to redress his injuries. Although the surgery improved Mr. Ho's condition, he continued to suffer from pain and numbness in his neck and right arm. He was treated by a pain specialist.

         On November 18, 2011, a vehicle struck him while he was walking in a parking lot. He was knocked unconscious and suffered a medial fracture to his right eye, multiple broken ribs, and a punctured lung.

         Approximately two years later, he was in an automobile accident and suffered a concussion, cervical strain, and a chest contusion. In addition to his prior conditions, he was newly diagnosed with pseudoarthrosis with right C7 radiculopathy. In July 2014, he underwent a second surgery for discectomy and fusion at ¶ 6-7, right C6 foraminotomy, and decompression of cervical stenosis. Mr. Ho complains that he still suffers from neck, back, leg, rib and right-arm pain, difficulty in using his right hand, and depression.

         Opinions by Treating Professionals

         Mr. Ho provided only one Medical Source Statement in support of his disability claim. A physician's assistant, Neelam Gala, opined that Mr. Ho can only walk one-half of a city block before needing to rest or suffering severe pain, can sit for up to thirty minutes at one time, can stand for forty-five minutes at one time, can only sit for a total of less than two hours during an eight-hour day, and can only stand and/or walk for less than two hours during an eight-hour day; muscle weakness, pain, and/or numbness would require him to take ten-minute breaks every thirty minutes during a work-day; he could never lift any weight, twist, stoop, or climb ladders and could only rarely crouch, squat, or climb stairs during a work-day; he could only grasp, turn, or twist objects, perform fine manipulations, reach in front of his body, and reach overhead 5% of the time with his right hand and 20% of the time with his left hand; he would be off task for 25% or more of a workday, was incapable of even low-stress work, and would be absent from work for more than four days each month.

         Additionally, although he did not fill out a Medical Source Statement, on January 8, 2014, the surgeon who performed Mr. Ho's first surgery, Dr. G. Alexander West, stated,

[Mr. Ho] has chronic myelopathy with weakness, sensory deficits and significant chronic neuropathic pain that has been challenging to manage. With this being said Mr. Ho is advised to maximize his conservative therapy approaches, including PT, acupuncture, massage etc. He will return on an as needed basis. Due to his chronic myelopathy from his spinal cord ...

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