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Moore v. Berryhill

United States District Court, D. Colorado

November 5, 2018

BRADLEY L. MOORE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          LEWIS T. BABCOCK, JUDGE

         Plaintiff Bradley L. Moore, 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. §§ 401-433. 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 is a 58 year-old man who has a GED. [Administrative Record (“AR”) 123] He seeks judicial review of SSA's decision denying his application for DIB. Pl.'s Br., ECF No. 21 at 1. Plaintiff filed his application in March 2014 alleging that his disability began in March 2012 (although this was amended during an oral hearing to November 2012). [AR 115, 250]

         The application was initially denied on May 14, 2014. [AR 156] The Administrative Law Judge (“ALJ”) conducted two evidentiary hearings and issued a written ruling on September 23, 2015. [AR 95-107, 113-19, 120-51] In that ruling, the ALJ denied Plaintiff's application on the basis that he was not disabled because, considering his age, education, and work experience, he had the residual functional capacity to perform jobs that exist in significant numbers in the national economy. [AR 106] 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 1-3]; see 20 C.F.R. §404.981. Plaintiff timely filed his complaint with this court seeking review of SSA's final decision. ECF No. 1.

         II. Relevant Medical History

         In November 2012, Plaintiff fell and had an MRI showing foraminal narrowing, osteophytes, and disc protrusion. [AR 751] He also had disc degeneration, numbing in his arm, and a severely limited range of motion in his neck. [Id.] Jaymi Devans, FNP, and others from the Salud Family Health Centers saw Plaintiff over the proceeding years. [See e.g. AR 690, 698, 702, 718, 770] Devans stated that Plaintiff was in a cervical collar which allowed no movement of his head nor lifting of his arms and was in a great deal of pain. [AR 801] Devans noted that Plaintiff's lack of insurance limited his referral options. [AR 790]

         Plaintiff was prescribed Oxycodone and told Devans he would attempt to obtain Medicaid. [AR 788] He entered into a narcotics contract after finishing the medication early and continued his attempt to obtain Medicare after initial denial. [AR 785-86] Plaintiff's pain persisted and he sought pain management, even though he would have to pay without insurance. [AR 779] Plaintiff began to taper his medicine and managed his pain. [AR 772]

         Past his date last insured, Plaintiff noted that his back and neck pain flared when he had to take a flight. [AR 770] In early 2014, after being approved for Medicaid, Plaintiff underwent a decompression and fusion surgery. [AR 363, 801, 816] A few weeks after the surgery, he was noted to be doing well and was happy as he had regained function and sensation in his right arm and hand, but was with similar pain as to before the surgery. [AR 712] However, Plaintiff fell again in mid-2014, leading to severe back pain and seeking other options despite being on a high dose of pain medication. [AR 706-08] Plaintiff had lumbar foraminotomy surgery and subsequent infections related to the surgery. [AR 503-04, 698, 859] ¶ 2015, Plaintiff underwent another fusion surgery. [AR 834] This surgery failed and in 2016, he had yet another spinal fusion surgery. [AR 17-20]

         III. Legal Standards

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

         A claimant is “disabled” under Title II of the Social Security Act if he is unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see Bowen v. Yuckert, 482 U.S. 137, 140 (1987). SSA has established a five-step sequential evaluation for determining whether a claimant is disabled and thus entitled to benefits. 20 C.F.R. § 404.1520.

         At step one, SSA asks whether the claimant is presently engaged in “substantial gainful activity.” If he is, benefits are denied and the inquiry stops. 20 C.F.R. § 404.1520(b). At step two, SSA asks whether the claimant has a “severe impairment”-that is, an impairment or combination of impairments that “significantly limits [his] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If he does not, benefits are denied and the inquiry stops. If he does, SSA moves on to step three, where it determines whether the claimant's impairments “meet or equal” one of the “listed impairments”-impairments so severe that SSA has determined that a claimant who has them is conclusively disabled without regard to the claimant's age, education, or work experience. 20 C.F.R. § 404.1520(d). If not, SSA goes to step four.

         At step four, SSA determines the claimant's residual functional capacity (“RFC”)-that is, what he is still able to do despite his impairments-and asks whether the claimant can do any of his “past relevant work” given that RFC. 20 C.F.R. § 404.1520(e). If not, SSA goes to the fifth and final step, where it has the burden of showing that the claimant's RFC allows him to do other work in the national economy in view of his age, education, and work experience. 20 C.F.R. § 404.1520(g). At this step, SSA's “grid rules” may mandate a finding of disabled or not disabled without further analysis based on the claimant's age, education, and work experience. 20 C.F.R. Pt. 404, Subpt. P, App. 2.

         In contrast with step five, the claimant has “the burden of establishing a prima facie case of disability at steps one through four.” Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003).

         B. ...


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