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Covington v. Berryhill

United States District Court, D. Colorado

July 2, 2018

JAMES KENNEDY COVINGTON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          ORDER

          MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, James K. Covington, appeals from the Social Security Administration (“SSA”) Commissioner's final decision denying his application for disability insurance benefits (“DIB”), filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-33, and his application for supplemental security income benefits (“SSI”), filed pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-83c. I hold the ALJ erred in assigning too little weight to Mr. Covington's treating physician's opinion. I reverse the decision of the ALJ and remand this case to the Commissioner for further proceedings.

         BACKGROUND

         I. Mr. Covington's Conditions

         Mr. Covington was born on December 21, 1961; he was fifty-four years old when he filed his application for DIB and SSI. [AR 127]. Mr. Covington claims he became disabled on November 22, 2015 due to physical impairments. [Id.]

         On December 29, 2014, Mr. Covington saw Dr. David Cohn for a follow-up and repeat urinary tox screen. [AR 261]. The medical report stated that Mr. Covington is a “well-developed male in no apparent distress. He is alert and conversant.” [Id.] The report noted that Mr. Covington was diagnosed with HIV in 2001. [Id.] Dr. Cohn stated that Mr. Covington tolerated his HIV medications well and reported excellent adherence. [Id.]

         On April 20, 2015, Mr. Covington visited Dr. Mark W. Thrun for an HIV follow-up. [AR 235]. The medical report stated that Mr. Covington tolerated his medications well and reported excellent adherence. [Id.] Dr. Thrun also indicated that Mr. Covington had a history of chronic pain in his knees and his lower back, and his symptoms have recently worsened. [Id.] The doctor stated the pain likely resulted from injuries sustained while Mr. Covington was in military service. [Id.] Mr. Covington denied any radiculopathy, weakness, imbalance, or falls. [Id.] However, he noted that his current job requires heavy lifting and strenuous activity, which makes it very difficult for him to perform his duties effectively. [Id.] The report stated that Mr. Covington had “Cranial nerves II-XII grossly intact. Strength 5/5 bilaterally. . . . No pronator drift. Rapid movements intact. Steady gait and balance observed.” [AR 236].

         On August 18, 2015, Mr. Covington visited Dr. Margaret McLees for another HIV follow-up. [AR 224]. Dr. McLees stated that Mr. Covington had excellent adherence and tolerated his medications well. [Id.] Mr. Covington was using medication for chronic ongoing back pain, shoulder pain, and paresthesia. [Id.] Mr. Covington informed Dr. McLees that he was working at a retirement community, and it was going well. [Id.] Dr. McLees concluded that Mr. Covington was a well-developed male in no apparent distress. [Id.]

         On November 4, 2015, Mr. Covington had another appointment with Dr. McLees. [AR 213]. Mr. Covington said he has had “right flank pain” for the last three days. He denied any acute event, and he stated his symptoms were gradually improving. [Id.]

         On November 22, 2015, Mr. Covington visited the Lutheran Medical Center due to wrist and back pain that resulted from attempting to catch a patient at work. [AR 424]. Dr. Phillippe Andre Tirman performed an x-ray on Mr. Covington and found no definite fracture identified in the wrist, but degenerative changes in the carpus. [Id.]

         On December 4, 2015, Mr. Covington visited Front Range Occupational Medicine for his ongoing back and wrist pain. [AR 288]. Mr. Covington rated his pain at four on a one-to-ten scale. [Id.] Dr. Matt Miller found Mr. Covington sprained his lumbar spine ligaments, and he recommended physical therapy and a twenty pound lifting restriction. [AR 290]. Dr. Miller anticipated that Mr. Covington would recover within one to two weeks and should be back to full duty for work. [Id.]

         On December 8, 2015, Mr. Covington visited Belmar Physical Therapy. [AR 292]. The physical therapy records indicate that Mr. Covington was thirty-six percent disabled because of lower back pain. [Id.] However, Mr. Covington's physical therapist anticipated he would return to work in four weeks. [Id.]

         Mr. Covington visited Concentra Medical Centers on December 9, 2015. [AR 369]. Mr. Covington complained about central lower back pain and numbness in his thighs, but he stated that those issues were improving. [AR 378]. Dr. Chelsea R. Rasis diagnosed Mr. Covington with a lumbar spine ligament sprain. [Id.] The report indicated that Mr. Covington could return to work immediately with the following restrictions: no bending greater than five times per hour, may lift up to fifteen pounds frequently up to six hours per day, and may push/pull up to fifteen pounds frequently up to six hours per day. [Id.] On the same day, Mr. Covington also visited Dr. Kathleen E. Voss for a therapy appointment due to his left wrist sprain. [AR 372]. Dr. Voss recommended Mr. Covington return to modified work. [Id.]

         On December 11, 2015, Mr. Covington began seeing Dr. Angela J. Wilt at Concentra Medical Center for physical therapy. [AR 371]. Mr. Covington reported that he was able to walk without pain after e-stimulation on December 10, 2015. [Id.] However, Mr. Covington reported that he reinjured his back at work when trying to catch a resident falling out of her wheelchair. [Id.] Mr. Covington stated that he mostly recovered from this, but his back was still sore. [Id.] Dr. Wilt recommended he return to modified work. [Id.]

         During his next two months of physical therapy, Mr. Covington reported that his back was close to 100% improved, but he had a constant pain in his left back. [AR 388]. The pain increased when lifting heavy objects. [Id.] The medical report stated that Mr. Covington had increased pain after siting for five minutes. [AR 389]. During a later visit with Dr. Wilt, Mr. Covington stated his back felt tight, especially after work while lifting or transferring residents. [AR 406]. Mr. Covington had been working at his regular job, but he took off work from December 7, 2015 to December 29, 2015, because pain was worsening. [AR 410]. Dr. Wilt restricted Mr. Covington to lifting up to fifteen pounds frequently, pushing or pulling up to fifteen pounds frequently, and bending only five times per hour. [AR 406]. Mr. Covington was able to increase his lifting restriction to fifty pounds on January 19, 2016. [AR 350].

         On March 16, 2016, Mr. Covington reported to Dr. Stephen Danahey that his wrist was healed. [AR 335]. Dr. Danahey reported that Mr. Covington could return to full work with no restrictions. [AR 336].

         On March 24, 2016, Mr. Covington visited the Denver Health Medical Center complaining about ongoing dizziness that impaired his work performance. [AR 198]. He also reported that his chronic neck and back pain was interfering with his ability to lift and do his job properly. [Id.]

         On March 31, 2016, Mr. Covington began seeing Dr. Fredric Zimmerman. [AR 448]. The report indicated that past oral medications and physical therapy provided some moderate-to-good relief for his lower back pain. [Id.] However, his symptoms returned once he began working. [Id.] He reported constant lower back pain across the lumbosacral region, and he had sensations of “pins and needles.” [Id.] Dr. Zimmerman recorded that Mr. Covington was unable to work without restrictions at that time. [AR 449].

         Dr. Zimmerman referred Mr. Covington to Dr. Steve Brown to perform an MRI. [AR 42]. Although the MRI revealed no acute intracranial abnormality, it showed a “marked narrowing of the L5-S1 disc space which may be related to facet joint arthroplasty.” [AR 196].

         On April 15, 2016, Mr. Covington saw Dr. Benjamin J. Chambers at Denver Health Medical Center. [AR 188]. Mr. Covington reported that his daily episodic dizziness had become more frequent and consistent. [Id.] He denied having any major AIDS crises, and he had been adherent to his HIV medicine regimens. [AR 189]. Dr. Chambers reviewed Mr. Covington's x-ray and MRI images of the lumbar spine. [AR 191]. He concluded that Mr. Covington had right leg radicular symptoms. [Id.] Additionally, Mr. Covington's MRI and x-ray were abnormal at the level of L5-S1. [AR 192]. Dr. Chambers indicated that Mr. Covington had normal bulk and tone symmetrically in the upper and lower extremities. [AR 190] He had “5/5 strength in upper and lower extremities throughout.” [Id.]

         On May 2, 2016, Mr. Covington returned to the Concentra Medical Centers for a work activity status report. [AR 329]. His physician noted the following additional work restrictions: may lift up to five pounds occasionally up to three hours per day; may push/pull up to five pounds occasionally up to three hours per day; may bend occasionally up to three hours per day. [Id.]

         On May 5, 2016, Mr. Covington revisited Dr. Zimmerman. [AR 327]. Dr. Zimmerman indicated that Mr. Covington's symptoms did not improve and might be mildly worse. [Id.] Further, his lower back symptoms began to interfere with activities of daily living. [Id.] Dr. Zimmerman's physical examination revealed that Mr. Covington was uncomfortable in the seated position and struggled to go from a seated to standing position. [Id.]

         On June 15, 2016, Mr. Covington reported a pain score at rest of five out of ten to Dr. Zimmerman. [AR 446]. His lumber range of motion showed he was able to reach down just above his kneecaps. [Id.] Although his pain increased to six to seven out of ten when extending, his pain decreased significantly after Dr. Zimmerman performed bilateral L5-S1 transformational epidural steroid injections. [AR 446-47].

         On July 7, 2016, Mr. Covington revisited Dr. Zimmerman and reported seventy percent relief immediately after the steroid injection, but the relief had diminished. [AR 441]. Dr. Zimmerman determined that Mr. Covington could not work, in part because he was stiff and slow when transitioning from sitting to standing. [Id.] Dr. Zimmerman ...


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