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Poole v. Berryhill

United States District Court, D. Colorado

July 6, 2018

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



         Plaintiff, Gwendolyn Ann Poole, appeals from the Social Security Administration (“SSA”) Commissioner's final decision denying her application for disability insurance benefits (“DIB”), filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-33, and her application for supplemental security income benefits (“SSI”), filed pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-83c. Jurisdiction is proper under 42 U.S.C. § 405(g). Because the ALJ failed to address all of Ms. Poole's severe impairments at step three, I reverse the decision of the ALJ and remand the case to the Commissioner for further proceedings.


         I. Ms. Poole's Conditions

         Ms. Poole was born on September 20, 1966; she was forty-six years old when she filed her application for DIB and SSI. [AR 77]. Ms. Poole claims she became disabled on October 22, 2012 due to physical impairments. [Id.]

         Ms. Poole first sought treatment for lower back pain in May 2005. [AR 307]. After lumbar epidural steroid injections and physical therapy failed to relieve her pain, she underwent back surgery on January 27, 2006. [AR 314-22, 340-42]. During the surgery, disc material impinging on Ms. Poole's nerve root was found and successfully removed. [AR 341].

         On December 30, 2007, Ms. Poole was rear-ended by a drunk driver. [AR 354]. After the accident, she experienced migraines, upper and mid back pain, and tingling in her arms. [Id.] For three years, Ms. Poole received osteopathic manipulation, chiropractic treatment, and various prescriptions for painkillers. [AR 394]. On December 9, 2010, Ms. Poole was referred to Uptown Brain Injury and Pain Management to address her recurring symptoms. [Id.] There, Dr. Alexander Feldman noted reduced range of motion (“ROM”) in the lumbosacral spine and cervical spine, as well as reduced size of the left calf muscles and positive leg raising tests. [AR 395]. Ms. Poole was then referred for a lumbar spine MRI at Denver Integrated Imaging North. [AR 389]. This test showed increased disc extrusions and disc bulge with compression of nerve roots in her spine. [AR 400]. Though the MRI revealed reduced spinal stenosis, a new foraminal narrowing was found. [Id.] In May 2011, an MRI was completed on her cervical spine, which demonstrated mild degeneration yet no accessory ligament tears. [AR 386]. She attended physical therapy for four months in 2011. [AR 402-24].

         Ms. Poole began to experience symptoms of hypothyroidism in February 2012. [AR 432]. Throughout 2013 and 2014, Ms. Poole was formally diagnosed and treated at Aurora South by Dr. Michael Holder and Dr. Kalindi Batra for hypothyroidism, hypertension, obesity, sinusitis, migraines, and back pain. [AR 438-98]. Regarding her migraines and back pain, she displayed no focal neurological deficits, normal sensation, reflexes, muscle strength, and tone in February 2013. [AR 497]. Further, in November 2013, Ms. Poole walked with a normal gait and still had normal sensations and reflexes. [AR 466]. She was prescribed Armour to treat her hypothyroidism symptoms, which included weight gain, hair loss, and fatigue. [AR 462, 564]. However, her most recent bloodwork labs have all demonstrated normal baselines of TSH/FT3/FT4 and an ultrasound showed only mild enlargement of the thyroid, which do not represent a true diagnosis of hypothyroidism. [AR 468, 564]. Also, on April 30, 2014, Ms. Poole elected to stop taking her hypertension medication. [AR 446]. Despite her high blood pressure, Dr. Batra noted that she did not have any hypertensive risk factors or target end organ damage. [Id.]

         In July and August 2014, Ms. Poole visited two different emergency care centers with complaints of low back and left hip pain. [AR 542, 689]. Both times her doctors gave her Percocet and ordered x-rays of her left hip and lumbosacral spine. [Id.] Her left hip x-ray demonstrated “moderate to severe degenerative changes in the hip” but no apparent fractures or malalignment. [AR 543]. The x-ray of her lumbar spine showed mild degenerative dislocations, foraminal narrowing, and a bulging disc on her S1 nerve. [AR 546].

         On August 7, 2014, Ms. Poole first visited the Hidden Lake Medical Offices to address her chronic back pain. [AR 560]. There, Dr. Emily Merrick noted Ms. Poole had full ROM, negative straight leg raising tests, and her lower extremity strength was rated a 5/5. [AR 561]. Though her left lower back and left hip were tender, the doctor opined that Ms. Poole appeared to be in no pain and she should stop taking Percocet. [Id.] Ms. Poole saw Dr. Janisse Rears four days later, who consulted her on chronic pain syndrome and symptom management. [AR 559]. Dr. Rears offered steroid injections for her hip pain and recommended increasing activity by five minutes per week to promote weight loss. [AR 560]. In response, Ms. Poole declined steroid injections and stated she cannot increase the time she spends exercising. [Id.]

         Ms. Poole had her initial visit with Dr. Karen Ksiazek at Exempla Spine Care on August 26, 2014. [AR 548]. She explained that after eventually agreeing to a left hip injection, her average pain level was a five out of ten, with tingling and numbness in her left leg and stabbing pain in her right thigh. [AR 548, 550]. She had restricted ROM in her spine and a positive right leg slump test. [AR 550]. However, her straight leg raises were negative bilaterally, she had significant compression of nerve roots, and a normal heel-toe walk. [AR 550-51]. Dr. Ksiazek recommended physical therapy, spine and hip injections, and possible orthopedic correction of her left hip. [AR 549].

         Dr. Rears submitted a Colorado Department of Human Services Med-9 Form in March 2015. [AR 577]. She opined that Ms. Poole was “not totally disabled” but had a physical impairment that would last for six months. [Id.] She stated that Ms. Poole's chronic lower back pain limited her to light physical exertion. [Id.]

         On March 7, 2015, Ms. Poole spent the night in an emergency room due to chest pain and a racing heart. [AR 742]. Her EKG results showed an irregular sinus rhythm, but overall she had no focal neurological deficits, normal ROM, no back pain, and full (4/4) strength. [AR 744, 758]. Her doctor noted that she was “a bit melodramatic in describing” her symptoms. [AR 758]. She was diagnosed with atrial fibrillation and discharged the next morning. [Id.]

         After her hospitalization, Ms. Poole visited Dr. Kristin Sterrett at Hidden Lake Medical Offices. [AR 627]. Ms. Poole refused to see their endocrinologist, and Dr. Sterrett noted that she was unlikely to accept evidence-based medical care in the future. [Id.]

         On April 7, 2015, Ms. Poole revisited Dr. Ksiazek for back and neck pain. [AR 734]. She described her current pain as a 4/10 but her average pain as a 5/10. [Id.] Dr. Ksiazek noted only mild cervical spine spasms and recommended x-rays and physical therapy. [AR 736-37]. An x-ray of her cervical spine on April 8 demonstrated mild degenerative disc disease but no fracture. [AR 679]. A left shoulder x-ray showed no fracture or dislocation and only mild osteoarthritic changes. [AR 587].

         On October 16, 2015, Ms. Poole mentioned to Dr. George Robinson at Rock Creek Medical Offices that she does not take her medication for atrial fibrillation and hypothyroidism anymore, as she wishes to self-regulate. [AR 616]. For her chronic pain, she described her left hip pain as worsening; she cannot sit cross-legged and has difficulty putting on her shoes. [AR 615]. She relayed to the doctor that she receives hip injections every three months, but their effectiveness has diminished over time. [AR 616]. Further, in that same month, an x-ray of her hips showed “bone on bone, ” but only minimal degenerative changes. [AR 616, 650-51]. Dr. Robinson performed a total left hip replacement on February 1, 2016. [AR 600-05]. Six weeks after the surgery, on March 15, Ms. Poole reported that “a lot of her preoperative pain is improved.” [AR 593]. She still experienced back issues and felt as if her legs were different lengths, so Dr. Robinson recommended continued physical therapy to strengthen her hip muscles. [AR 593-94].

         Ms. Poole visited Dr. Ksiazek on February 16, 2016 to address her continued back pain. [AR 725-26]. The doctor ordered an MRI of her lumbar spine, which demonstrated shallow disc displacement, central disc protrusion, and anterior spondylosis. [AP 798-99]. After this test, on March 29, Dr. Ksiazek submitted a form regarding Ms. Poole's ability to perform work-related activity. [AR 724]. She stated that Ms. Poole could sit for only one hour, stand for fifteen minutes, and could not walk more than a quarter mile with an aid. [Id.]

         However, one month later, Dr. Ksiazek submitted to the SSA a Medical Source Statement of Ability to Do Work Related Activities. [AR 790-96]. She opined that Ms. Poole could occasionally lift up to fifty pounds, occasionally carry up to twenty pounds, and frequently carry ten pounds. [AR 790]. Further, she stated that Ms. Poole could sit for up to seven hours within a day and for forty-five minutes at a time, stand for two hours within a day and for twenty minutes at a time, and walk for three hours but only forty minutes at a time. [AR 791]. Dr. Ksiazek opined that Ms. Poole had some limitations on the use of her left foot, left arm, and shoulders, but could still occasionally climb stairs, balance, kneel and crawl. [AR 793]. Also, she recommended Ms. Poole never climb ladders and avoid the extreme ...

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