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Kline v. Berryhill

United States District Court, D. Colorado

March 13, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Kelly H. Rankin Magistrate Judge.

         This 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 Commissioner's decision.

         I. BACKGROUND

         On 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 Fortune.

         The 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;[1] 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.[2] After the third step, the ALJ is required to assess the claimant's residual functional capacity. 20 C.F.R. § 416.920(e).

         The ALJ 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 by noting:

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. Farber testified:

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).

         Because 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 limitations:

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.

         Plaintiff's 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.

         The ALJ 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.

         Dr. 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.

         On 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 47-48.

         Dr. 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 methamphetamine use.

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. Glassmire testified

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 ...

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