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McAleer v. Berryhill

United States District Court, D. Colorado

May 25, 2018

JEAN HABEGGER McALEER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          LEWIS T. BABCOCK, JUDGE

         Plaintiff, Jean McAleer, appeals from the Social Security Administration (“SSA”) Commissioner's final decision denying her application for disability insurance benefits, filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., and her application for supplemental security income, filed pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383c. Jurisdiction is proper under 42 U.S.C. § 405(g). Oral argument would not materially assist me in the determination of this appeal.

         After consideration of the parties' briefs, as well as the administrative record, I REVERSE and REMAND the Commissioner's final order for further proceedings.

         I. Statement of the Case

         Plaintiff seeks judicial review of SSA's decision denying her applications for disability insurance benefits and for supplemental security income. Compl., ECF No. 1. The applications were initially denied on August 22, 2013. [Administrative Record (“AR”) 20] The Administrative Law Judge (“ALJ”) conducted an evidentiary hearing on September 22, 2015 and issued a written ruling on October 8, 2015. [AR 17-31] In that ruling, the ALJ denied Plaintiff's application on the basis that she was not disabled because she had the residual functional capacity to perform her past relevant work. [AR 30-31] The SSA Appeals Council subsequently denied Plaintiff's administrative request for review of the ALJ's determination, making SSA's denial final for the purpose of judicial review. [AR 1] See 20 C.F.R. §416.1481. Plaintiff timely filed her complaint with this court seeking review of SSA's final decision.

         II. Facts

         A. Background

         Plaintiff is a 40 year-old woman who has a Bachelor of Arts in English. [AR 791] She has held a variety of jobs, including editor, program administration, apartment manager, personal assistant, and online researcher. [AR 92, 791] Plaintiff alleged she became disabled on March 31, 2010 due to a variety of conditions; most prominently at issue is the condition ankylosing spondylitis. [AR 82]

         Ankylosing spondylitis is a form of chronic arthritis that affects the spine. Ankylosing spondylitis, Genetics Home Reference, Nat'l Inst. Health, https://ghr.nlm.nih.gov/condition/ankylosing-spondylitis (last visited May 16, 2018). Early symptoms of ankylosing spondylitis include sacroilitis, which is the inflammation of the sacroiliac joints-the joints between the pelvic bone and the base of the spine. Id. This can eventually cause spondylitis if the inflammation spreads to the joints between the vertebrae. Id. Ankylosing spondylitis falls under the umbrella term seronegative spondyloarthropathy, referring to “a group of connective tissue diseases that cause prominent joint inflammation.” Spondyloarthritis, Merck Manual, https://www.merckmanuals.com/home/bone, -joint, -and-muscle-disorders/joint-disorders/spondyloarthritis (last visited May 16, 2018).

         B. Relevant Medical History

         Plaintiff began to see Barbara Drevlow, M.D., a specialist in rheumatology located in Illinois, in 2005 where she “presented with pain, swelling and stiffness in her joints including her sacroiliac joints accompanied by fatigue [and] muscle aches.” [AR 1201] Dr. Drevlow determined the findings of Plaintiff's evaluation were consistent with ankylosing spondylitis and seronegative spondyloarthropathy. [Id.] Dr. Drevlow noted that Plaintiff worked 15 hours a week in an office setting in 2005, but by early 2010, she was unable to work. [Id.] Plaintiff continued to see Dr. Drevlow until 2014 and was continually assessed with sacroilitis, seronegative arthritis, and a family history of ankylosing spondylitis. [AR 711, 714, 717, 719, 722, 725, 728, 731, 733, 736, 739, 741, 743, 745, 1090, 1094, 1096-97, 1101, 1104, 1109, 1126, 1133, 1137, 1147] Sheila Bhagavan, M.D. noted that Plaintiff was diagnosed with ankylosing spondylitis when she was 25 and began Humira in 2008. [AR 629] Humira is used to treat ankylosing spondylitis among other maladies. See Humira, DailyMed, Nat'l Inst. Health, https://dailymed.nlm.nih.gov/dailymed/drugInfo.cfm?setid=608d4f0d-b19f-46d3- 749a-7159aa5f933d (last visited May 18, 2018).

         Plaintiff additionally was “found to have lumbrosacral [sic] spine degenerative joint and disc disease” which was treated with physical therapy, pain medications, and epidural steroid injections. [AR 1201]

         Dr. Drevlow treated Plaintiff's ankylosing spondylitis and seronegative spondyloarthropathy with “nonsteroidal anti-inflammatory agents, methotrexate and TNF inhibitors with fair response.” [AR 1201] These injections, including Humira, were a constant throughout Dr. Drevlow's treatment plan for Plaintiff. [E.g. AR 709, 721, 740, 935] At first, these injections would alleviate pain and she would state that she is doing better or feeling well, but after the injections wore off she would feel sore. [AR 730, 735, 738, 740, 742, 744] As time progressed, Plaintiff experienced more pain in the neck, wrist, hands, lower back, buttocks, ankles, and feet. [AR 709, 712, 718, 721, 727, 929, 933, 1095, 1099] Dr. Drevlow and Plaintiff discussed whether the injection drug Humira was working or if something else should be used. [AR 735, 929] Plaintiff stated that she felt her “joints are pulsing with pain at times.” [AR 715] She experienced infections due to some of the injections. [AR 712, 721, 1102, 1108]

         During her time seeing Dr. Drevlow, Plaintiff also began to see Daniel Hurley, M.D. Dr. Hurley noted in his first appointment with Plaintiff that she presented with low back pain and bilateral leg pain that had affected her for about ten years. [AR 516] He noted that she had tried many medications and was found to have ankylosing spondylitis by sudden onset of multi-joint pain and based on family history. [Id.] He noted that Plaintiff was on “triple meds for the [ankylosing spondylitis]” and that it was still a challenge to control. [AR 516-518]

         Dr. Hurley referred Plaintiff to Shaun O'Leary, M.D. to primarily deal with pain related to meralgia paresthetica, which is compression of the nerve that supplies sensation to the skin surface of the thigh. [AR 804]; Meralgia paresthetica, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/meralgia-paresthetica/symptoms-causes/syc-20355635 (last visited May 17, 2018). Dr. O'Leary and Plaintiff discussed a percutaneous peripheral nerve stimulator trial, because Plaintiff had “failed all conservative care.” [AR 816] While Plaintiff was interested and willing to participate, this procedure did not occur because it was denied by insurance. [AR 915, 926, 929] After the denial, Dr. Drevlow noted that Plaintiff struggled with pain in her shoulders, hands, neck, hips, and back. [AR 926, 1088]

         Mary Kelly, D.O. became Plaintiff's primary physician and noted Plaintiff's ankylosing spondylitis. [AR 1120] Dr. Kelly performed a physical capacity evaluation and found that Plaintiff could: (1) sit for three hours and stand or walk for one hour during an eight-hour day; (2) perform simple grasping, pushing and pulling, but not fine manipulation or repetitive motion tasks; and (3) never carry or lift any weight. [AR 1111-12]

         Reynaldo Gotanco, M.D. and Vidya Madala, M.D. performed consultative exams on behalf of SSA. [AR 89-92, 105-07] Both note “known ankylosing spondylitis.” [AR 90, 106] Dr. Gotanco found that Plaintiff's statements concerning her symptoms were substantiated by the objective medical evidence, but Dr. Madala gave partial credibility. [AR 89, 105] Drs. Gotanco and Madala based their exertional limitations on the same four medical records. [AR 90, 106] Drs. Gotanco and Madala both found that Plaintiff could occasionally lift or carry 20 pounds, frequently lift or carry 10 pounds, stand or walk for two hours, sit for six hours in an eight-hour day, and could push or pull an unlimited amount. [Id.]

         Plaintiff relocated to Colorado in 2015, where she began to see Vance J. Bray, M.D. at the Denver Arthritis Clinic. [AR 1176] Dr. Bray noted that Plaintiff had ongoing symptoms and a past medical history of ankylosing spondylitis and elevated levels of C-reactive protein “despite weekly Humira with methotrexate and meloxicam” which suggested “suboptimal efficacy.” [AR 1174-76] Dr. Bray noted pain in many of Plaintiff's joints and suggested a different regime of medicine. [Id.]

         C. Hearing Testimony

         Plaintiff's hearing occurred on September 22, 2015. [AR 40] Plaintiff explained that she lived in Denver with her husband and five year-old son. [AR 46] The ALJ questioned Plaintiff on her work history, where they discussed the type of job she worked, what it entailed, and how much physical exertion was needed. [AR 47-52] The ALJ asked Plaintiff about medications and Plaintiff noted that she was no longer doing Humira injections and instead took Remicade infusions which as a noted side effect left her tired and at times sleeping until the day after the infusion. [AR 52-54]

         Plaintiff explained that three primary conditions-ankylosing spondylitis, fibromyalgia, and neuropathy-and the specific condition merlgia paresthetica kept her from working because of extreme fatigue, pain in all her joints, and “deeper, more prolonged pain in [her] lower back, neck, shoulders, wrists, elbows, [and] hands.” [AR 55-56] She continued that pain in her hips meant she had to lie down frequently, the nerve pain in her legs meant she could only stand for about ten minutes before the pain increased, and that even sitting her pain would be triggered in about 30 minutes. [AR 56] She discussed the few ways in which she would sit or lie throughout the day and that she usually would lie down from two to four hours per day because her pain increased by sitting. [AR 60]

         Plaintiff discussed the actions she could do at home, consisting of unloading the dishwasher or folding laundry about once a week and preparing simple meals. [AR 56-57] She stated her husband did the “vast majority” of grocery shopping and that she used a motorized cart when she went to the store. [AR 57] She stated that she drove about five days a week, mostly taking or picking up her son from school and that she watched him alone for about one hour per day. [Id.] She stated that she had difficulty showering and getting dressed, but still did it every day with periods of lying down in between. [AR 59]

         Plaintiff confirmed that Dr. Drevlow was the one to diagnose her with ankylosing spondylitis and fibromyalgia. [AR 62] She discussed the quality of her past jobs, her hopes of one day re-entering the job market, and that she moved to Denver for additional family support. [AR 63-64]

         During examination from the ALJ, Plaintiff explained that she spent much of her time at home online, reading, or watching TV. [AR 66] Plaintiff also explained that she did volunteer work and reduced her role, but was still a board member at the organization. [AR 72-73]

         The ALJ examined the vocational expert (“VE”) to categorize Plaintiff's past work and physical demand levels. [AR 68-70] The ALJ then hypothesized whether a woman with a background and constraints similar to Plaintiff's could do any of Plaintiff's past work. [AR 73-74] The VE stated that under the hypothetical, all of her relevant positions could still be performed. [AR 73-75]. The ALJ modified the hypothetical to an individual that “is further limited such that they can perform frequent but not continuous reaching and handling and fingering.” [AR 74] The VE stated that all jobs would remain. [AR 74-75] The ALJ modified again to an individual who could be on her feet standing or walking a total of one hour during the day, and sitting a total of three hours during the day. [AR 75] The VE stated that this limitation would not be consistent with competitive work. [Id.] The VE also stated that competitive work would be eliminated if the individual had poor capacity to interact with the public and maintain attention or concentration. [Id.]

         Plaintiff's representative then asked the VE a few other hypotheticals. [AR 75-77] The VE stated there would not be work for someone with Plaintiff's age, education, and past relevant work if that person: (1) needed to lie down for two hours a day; (2) had to elevate her legs at waist-level for at least an hour a day; or (3) would need up to five bathroom breaks in the first three hours of work in a day. [AR 75-76] The VE also confirmed that any of the jobs described by the ALJ would not be performable if there was need for “occasional use of the handling, fingering, and fine manipulation . . . .” [AR 76]

         III. Legal Standards

         A. SSA's Five-Step Process for ...


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