United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
H. Rankin Magistrate Judge.
action comes before the court pursuant to Title XVI of the
Social Security Act, 42 U.S.C. § 1383(c), for review of
the Commissioner of Social Security (the
“Commissioner” or “Defendant”)'s
final decision denying Kristine Kline's
(“Plaintiff”) application for Supplemental
Security Income (“SSI”). Plaintiff filed the
Complaint on December 14, 2016, and the case was assigned to
District Judge Wiley Y. Daniel. Doc. 1. On April 27, 2017,
the parties consented to magistrate jurisdiction pursuant to
28 U.S.C. § 626. Doc. 18. On July 17, 2017, the case was
reassigned to Magistrate Judge Craig B. Shaffer. Doc. 30.
After Judge Shaffer became unavailable, the case was
reassigned to the undersigned on November 8, 2017. Doc. 32.
The court has carefully considered the Amended Complaint,
Plaintiff's Opening Brief (filed June 2, 2017) (Doc. 23),
Defendant's Response Brief (filed June 28, 2017) (Doc.
28), Plaintiff's Reply (filed July 14, 2017) (Doc. 29),
the entire case file, the Social Security administrative
record (“AR”), and the applicable law. Oral
argument would not materially assist the court. For the
following reasons, the court reverses and remands the
March 30, 2015, Plaintiff filed an application for SSI
claiming she has been disabled since January 2015 due to
several physical and mental conditions. AR at 122, 249. She
was 39 years old at the time. Id. at 25. Her
application was denied administratively. Id. at 138
(July 2, 2015 transmittal). Plaintiff then requested a
hearing before an administrative law judge
(“ALJ”). Her case was assigned to ALJ Lowell
Commissioner's regulations define a five-step process for
ALJs to determine whether a claimant is disabled:
1. The ALJ must first ascertain whether the claimant is
engaged in substantial gainful activity. A claimant who is
working is not disabled regardless of the medical findings.
2. The ALJ must then determine whether the claimed impairment
is “severe.” A “severe impairment”
must significantly limit the claimant's physical or
mental ability to do basic work activities.
3. The ALJ must then determine if the impairment meets or
equals in severity certain impairments described in Appendix
1 of the regulations.
4. If the claimant's impairment does not meet or equal a
listed impairment, the ALJ must determine whether the
claimant can perform his past work despite any limitations.
5. If the claimant does not have the residual functional
capacity to perform her past work, the ALJ must decide
whether the claimant can perform any other gainful and
substantial work in the economy. This determination is made
on the basis of the claimant's age, education, work
experience, and residual functional capacity.
Wilson v. Astrue, No. 10-cv-00675-REB, 2011 WL
97234, at *2 (D. Colo. Jan. 12, 2011) (citing 20 C.F.R.
§ 404.1520(b)-(f)); see also 20 C.F.R §
416.920; Williams v. Bowen, 844 F.2d 748,
750-51 (10th Cir. 1988). Impairments that meet a
“listing” and a duration requirement are deemed
disabling at step three, with no need to proceed further in
the 5-step analysis. After the third step, the ALJ is required
to assess the claimant's residual functional capacity. 20
C.F.R. § 416.920(e).
held an evidentiary hearing on June 17, 2016. AR at 33-93.
Plaintiff was represented by counsel. The ALJ heard the
testimony of two medical experts, Mark Farber, M.D., and
David Glassmire, Ph.D., a clinical psychologist. He also
heard the testimony of Plaintiff and a vocational expert
(“VE”), Ashley Bryars. The ALJ began the hearing
today I received a new medical record, 157 pages of records
from Community Reach Center. So, Dr. Farber … what I
do in situations such as this where the medical records are
not received in time for you to receive them, I'm going
to take your testimony.
I'll have you testify, and then after the close of the
hearing I'll mail the new records to you and I'll ask
you to review them and send me a letter back saying whether
or not these new records change your opinions in any way.
And, if so, state the change in the opinions.
AR at 35. These newly-received records were for mental health
treatment Plaintiff received in the year preceding the
hearing (April 6, 2015 to June 7, 2016) and were later
exhibited as B14F. Id. at 806-962. The ALJ then
asked Dr. Farber, based on his review of the record to date
(i.e., Exhibits B1F-B13F) what, in his opinion,
Plaintiff's physical impairments were. AR at 37. Dr.
Well, just let me say, the missing records in the presumptive
diagnosis of multiple sclerosis, and in 9-F we have a letter
from Dr. O'Brien talking about the fact that she has been
diagnosed and that she has all kinds of difficulties.
However, we don't have any follow up records of the
multiple sclerosis, the clinical response, whatever treatment
she got, et cetera. So, that's a huge problem in terms of
what I have to review.
There's an MRI at 7-F Page 110 which is consistent where
findings are worrisome, Page 110 for demyelenating process
such as multiple sclerosis in the correct clinical setting,
which means that we need to see a clinical specialist dealing
with multiple sclerosis, which is normally a neurologist, who
is going to confirm the diagnosis on clinical grounds to give
us indications of what the impairments are, what the
treatment is going to be, et cetera. We don't have that.
AR at 37. Dr. Farber discussed the medical records relating
to Plaintiff's alleged conditions in her right knee,
morbid obesity, and lumbar spine; the lack of medical
evidence to support her alleged heart conditions; and opined
that given the “not convincing” evidence as to
multiple sclerosis, her physical impairments did not meet any
of the “listings” (for step 3 analysis).
Plaintiff's physical impairments did not meet a listing,
Dr. Farber opined regarding Plaintiff's functional
limitations or work restrictions. In his opinion, Plaintiff
could work full time at the sedentary level, with several
Regular sedentary, lift and/or carry ten pounds occasionally
and less than ten pounds frequently; sit for up to six hours
in an eight hour day with usual breaks; stand and/or walk for
up to two hours with usual breaks in an eight hour day. I
would not limit any limit on foot controls based on what I
have. I would not place any limit on upper extremity
reaching, handling in all directions, fingering, fine and
gross manipulation. However, on postural I would say there
would be no ropes, ladders, scaffolds or unprotected heights.
* * * There would be no extremes of heat or cold. * * * And
there would be no particular requirements to balance * * *
because of the MRI. * * * I would say that there would be no
crawling and no kneeling. * * * Occasional stooping,
occasional bending, occasional twisting, and occasional
stairs, and occasional ramps.
Id. at 39-40.
counsel then brought to the ALJ's attention that
treatment records from Kaiser Permanente - which his office
had submitted or attempted to submit two weeks earlier - were
missing from the record. Id. at 41. Plaintiff's
counsel indicates these records covered the mental health and
physical treatment Plaintiff received from June 23, 2015 to
May 16, 2016 (i.e., the year preceding the hearing),
and “all my questions for the doctor would have been
related to those submissions.” AR at 41. After the
hearing, Plaintiff's counsel resubmitted these 400 pages
of medical records (Id. at 319), and they were
exhibited as B15F. Id. at 964-1363.
then called the mental health expert, Dr. Glassmire, and
explained he would send the additional records from Community
Reach Center and Kaiser to Dr. Glassmire for review. The ALJ
instructed Dr. Glassmire to send a letter stating whether the
new exhibits change his opinions and if so in what way.
Id. at 43-44. Based on his review of Exhibits
B1F-13F, Dr. Glassmire opined Plaintiff had an unspecified
mood disorder meeting a listing 12.04.
Claimant has been diagnosed with bipolar disorder and there
certainly is a possibility that the claimant also has ongoing
amphetamine use, which could account for any manic type
symptoms that the claimant has. So, it may be just more of an
underlying unipolar depressive disorder with the substance
use superimposed, but it could also be a bipolar disorder so
calling it an unspecified mood disorder.
Id. at 44-45. Dr. Glassmire opined Plaintiff has a
substance use disorder as to methamphetamine and cannabis
that meets listing 12.09.
Glassmire then gave his opinions regarding Plaintiff's
functional limitations with and without the substance use
(referred to in the transcript as “DANA, ”
i.e., drug and alcohol abuse, which the court refers
to as “DAA”). He opined her activities of daily
living are moderately impaired with DAA, mild without; her
social functioning is markedly limited with DAA and
moderately limited without; her concentration, persistence
and pace are markedly limited with DAA and moderately limited
without; she had two episodes of decompensation with DAA and
none without. Id. at 45. Without DAA, he would limit
Plaintiff's work to “simple routine tasks, no
interaction with the public, and only occasional interactions
with coworkers and supervisors.” AR at 46.
cross-exam, Plaintiff's counsel pointed to the opinion of
Plaintiff's treating physician, Daniel O'Brien, D.O.,
dated November 24, 2015 which noted among other things
Plaintiff “completed a sobriety program months ago and
has undergone regular urine tests through my clinic.”
AR at 46-47 (reading from ex. B9F, now AR at 749). Based on
that document and opinions of Rod Falcon (noted in the
Commissioner's exhibit indices as Rod or Ron Elcon) given
in December 2015 (exs. B10F and B11F, AR at 756-775)
Plaintiff's counsel inquired of Dr. Glassmire whether he
could give an opinion regarding Plaintiff's mental
impairments during a period of sobriety. Id. at
Glassmire did not consider Mr. Falcon's opinions a
sufficient basis to opine regarding Plaintiff's
impairments during sobriety because in his opinion the record
did not show sobriety. Dr. Glassmire at first testified the
record reflected methamphetamine use before and after Dr.
O'Brien's November 2015 opinion, but Dr. Glassmire
later corrected himself, noting the last record reflecting
methamphetamine use was from June 22, 2015, which he
characterized as “around the time of that
letter.” Id. at 50-51 (citing ex. B8F, AR at
728-48). He noted there were no drug screens in the record
after Plaintiff tested positive for methamphetamine in April
2014. So he was “not comfortable that the record
supports a significant period of sobriety prior to December
2015.” He further testified
an acute intoxication of methamphetamine is going to be over
relatively quickly within a few - within a day or two. But
the ongoing effects on mood and affect … can persist
for months after discontinuing use, particularly for somebody
who has chronic use. So it could be several months before you
won't see ongoing, particularly mood, symptoms from
AR at 51. When asked “in this case, how many months do
you think would be necessary to have an accurate period of
sobriety to be able to give an accurate opinion regarding
whether drugs and alcohol are significant or a contributing
factor material to the issue of disability?, ” Dr.
Well, that question presumes that you cannot determine that
during a period where the claimant is using. So, for example,
there are mental status exams in this record when the
claimant is not actively withdrawing or intoxicated that are
relatively normal mental status exams. * * * So, I don't
think that we need a period of sobriety to determine