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Johnson v. Berryhill

United States District Court, D. Colorado

March 30, 2018

ROBERT E. JOHNSON, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations, Social Security Administration, [*] Defendant.

          ORDER VACATING AND REMANDING ADMINISTRATIVE LAW JUDGE'S DENIAL OF BENEFITS

          William J. Martinez United States District Judge.

         This Social Security benefits appeal is brought under 42 U.S.C. § 405(g). Plaintiff Robert E. Johnson (“Plaintiff”) challenges the final decision of Defendant, the Acting Commissioner of Social Security (“Defendant” or the “Commissioner”), denying his application for disability insurance benefits. For the reasons set forth below, the ALJ's decision denying Plaintiff's application is vacated and remanded for further proceedings consistent with this order.

         I. BACKGROUND

         A. Summary Factual and Medical Background

         Plaintiff was born in 1968. (R. 28.) He has a high school and college education and a history of working in the Information Technology (“IT”) field. (R. 23, 104-05, 297.) In approximately July 2012, he began seeking treatment for a movement disorder which caused him to move frequently and suddenly during sleep, at times injuring himself. (R. 94.) In addition, by October 2013 he was seeing a family care provider, Dr. Andreas Edrich, for fibromyalgia, also reporting significant anxiety and related mental health concerns, and Dr. Edrich diagnosed “major depression.” (R. 546.)

         Beginning by November 2013, Plaintiff was seeking treatment from a rheumatologist, Dr. Cherie Reichart, whose records report “severe chronic fibromyalgia, ” “chronic pain syndrome, ” and “periodic limb movement disorder.” (See R. 556, 560, 565.) In December 2013, Plaintiff visited the Mayo Clinic, where records report that he “[met] the 2010 criteria for fibromyalgia, with a widespread pain index score of 15/19, and a symptom severity score of 6/12, ” and also addressed his “sensitivity to light and other stimulus.” (R. 403-04.)

         By February 2014, Plaintiff was also seeing a neurologist, Dr. Bruce Morgenstern, who wrote a letter for his employer, requesting “that his time in the office be limited to twice weekly and no more than two hours during any one day, ” given his diagnosis of “fibromyalgia characterized by chronic widespread pain, and also associated sleep disorders including . . . periodic limb movements . . . and restless leg syndrome, ” and noting that “such activities as prolonged sitting . . . are limited” by these conditions. (R. 724.)

         Although Plaintiff hired an attorney to assist him in seeking workplace accommodations, these were not provided, and Plaintiff was ultimately terminated when his employer concluded he could not perform the essential functions of his job. (R. 80-81.) Plaintiff submitted a claim under a private disability insurance policy benefits in early January 2015. (See R. 719-20, 727). The same month, he reported to Dr. Reichart that he was unable to return to work “due to persistent severe sensory overload and chronic headaches.” (R. 556.) At that time, Dr. Reichart's records reported that Plaintiff “attempted to maintain his position at work but the recurrent body pain and headaches are limiting, ” noting “daily severe migraine headaches and body pain, as well as “persistent anxiety.” (Id.)

         B. Procedural History and Agency Determination

         Plaintiff filed an application for disability insurance benefits under Title II of the Social Security Act on January 9, 2015. (R. 19, 251-52.)

         First representing himself, he requested and appeared at a hearing with an administrative law judge (“ALJ”) on September 21, 2015. (R. 19, 38-67.) He requested a supplemental hearing, at which he was represented by counsel who indicated the record was not complete (R. 19, 68-74), which then led to a third hearing, held May 16, 2016 (R. 19, 75-111).

         At the third hearing, Plaintiff testified, in part, that due to his sensory overload condition, working in an office environment would lead him to experience “an extreme level of pain, starting . . . with . . . a migraine headache, and then going to [his] body” (R. 82), and that conditions which tended to aggravate or exacerbate his condition, causing him to have headaches and/or experience other pain or symptoms included driving, fluorescent lights, “any sort of noise” or “any stimulation, ” including the sound of keyboarding. (R. 82-83.) In describing the pain he experiences, Plaintiff testified, for example, that his wife (who is a physician) has insisted that he use a narcotic pain killer to make him “easier to be around” (R. 92-93), and that in order to attend church he must use pain medications and wear ear plugs (R. 102).

         The ALJ denied benefits by written opinion dated August 31, 2016, following the Commissioner's five-step sequential evaluation process.[1] (Id. at 8-23.)

         At step one, the ALJ concluded that Plaintiff has not engaged in any substantial gainful activity since his alleged onset date. (R. 21.)

         At step two, the ALJ concluded that Plaintiff had the following impairments which “cause more than minimal functional limitations on basic work-related activities and are considered severe”:

fibromyalgia; restless leg syndrome; migraine headaches; osteoarthritis, status-post right knee arthroscopy . . .; sensory overload syndrome; photophobia; somatic symptom disorder; panic disorder; generalized anxiety disorder; and, major depressive disorder. (R. 21.)

         At step three, the ALJ concluded that Plaintiff's impairments did not “mee[t] or medically equa[l] the severity of any of the listed ...


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