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Walker v. Berryhill

United States District Court, D. Colorado

November 20, 2018

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



         Plaintiff Lisa Lynn Walker 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 is a 40 year-old woman with a ninth grade education who has performed work as an office administrator and caretaker. [Administrative Record (“AR”) 208, 284] She seeks judicial review of SSA's decision denying her application for disability insurance benefits and supplemental security income. Pl.'s Br., ECF No. 16 at 1. Plaintiff filed her applications in May 2014 alleging that her disability began in March 2014. [AR 208, 219]

         The applications were initially denied in July 2014. [AR 89, 100] The Administrative Law Judge (“ALJ”) conducted two evidentiary hearings and issued a written ruling on February 4, 2016. [AR 13-26, 31-79] In that ruling, the ALJ denied Plaintiff's applications on the basis that she was not disabled because she had the ability to perform her past relevant work. [AR 25-26] 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 1-4]; see 20 C.F.R. §§ 404.981, 416.1481. Plaintiff timely filed her Complaint with this court seeking review of SSA's final decision. ECF No. 1.

         II. Background

         A. Relevant Medical History

         In her application, Plaintiff claimed disability due to a back surgery, failed back surgery syndrome, lumbar radiculopathy, chronic pain, numbness in her right foot and left shin, and sacroiliitis. [AR 81] Plaintiff had a lumbar laminectomy in 2006. [AR 388] In August 2012, Plaintiff had an MRI of her lumbar spine in which nurse practitioner Kimberly Dufraux noted that Plaintiff had marked improvement compared to a 2006 MRI, but still had “small extrusions into the bilateral foramina with abutment of the [existing] ¶ 5 nerves bilaterally” and her L5-S1 remained at its “worst level.” [AR 392]

         Plaintiff began to see Brian Fuller, M.D. concerning her back pain. [AR 387] Dr. Fuller noted a differential diagnosis of low back pain to include “facet pain, failed back surgery syndrome and discogenic pain, ” a differential diagnosis of buttock pain to include “sacroiliac is, piriformis syndrome and greater trochanteric bursitis, ” and a differential diagnosis of worsening numbness to include “radiculopathy, post laminectomy syndrome and mononeuropathy.” [AR 388] Among other suggestions, Dr. Fuller noted that Plaintiff would be scheduled for a variety of injections and nerve and branch blocks. [Id.] These injections and blocks continued until 2015. [See AR 352-85, 752-91] These procedures included sacroiliac joint injections, posterior sacral ligament trigger point injections, transpiriformis sciatic nerve blocks, greater trochanteric bursa injections, and lumbar medial branch nerve blocks. [Id.]

         Dr. Fuller repeatedly noted that Plaintiff had “80% relief with previous diagnostic medial branch blocks” or “90% improved low back pain, buttock pain and right lower extremity pain following lumbar medial branch neurotomy and sacroiliac joint injections.” [See e.g., AR 351, 353, 365, 373, 754-55, 766-68, 771, 781, 783] At one point, Dr. Fuller noted that Plaintiff “describes a 100% improved right-sided low back pain but continued left sided low back pain following right lumbar medial branch neurotomy[, ] ¶ 100% improved left buttock pain and 80% improved right buttock pain following [a] bilateral sacroiliac joint injection.” [AR 370]

         Throughout this time, Plaintiff continued to see Ms. Dufraux. Ms. Dufraux noted that Plaintiff made complaints of hip pain, knee pain, and her toes “tingling.” [AR 408, 412] Plaintiff noted to her concerns on the efficacy of the injections and was using morphine, Fentanyl, and oxycodone to ameliorate pain. [AR 401, 404, 408] Ms. Dufraux prescribed medicine to prevent spasms as Plaintiff complained of a burning sensation in her nerves and Ms. Dufraux wrote that Plaintiff was to have the nerves cauterized. [AR 396-97, 400] Ms. Dufraux also began to wean Plaintiff off the opioid medications. [AR 401]

         Numbness and tingling continued, spreading to her buttocks, hands, and toes. [AR 702] A month later, Ms. Dufraux noted that Plaintiff felt better and had improvements on her joint and back pain. [AR 699] Plaintiff was additionally prescribed Wellbutrin and clonazepam related to a diagnosis of anxiety. [AR 401, 699] On referral from Ms. Dufraux, Plaintiff received a second opinion at the Colorado Comprehensive Spine Institute. [AR 718-21] From this exam, Plaintiff noted to Ms. Dufraux that she indeed thought she may have fibromyalgia. [AR 690] Plaintiff began to take the nonepileptic Lyrica regarding fibromyalgia, which was added to her list of maladies. [681, 720]

         Plaintiff's pain increased again and she worried the injections were not working. [AR 674, 677] Plaintiff had an MRI which showed a back sprain, and continued to complain of pain and numbness around her body. [AR 646, 650, 665, 669] She continued injections and began physical therapy. [AR 650, 669] A few months later, Plaintiff stopped physical therapy “as this makes her cry.” [AR 646] Over the proceeding months, Plaintiff expressed concern as to the length of the effectiveness of the injections and noted pain in her right elbow, tailbone, and lower back. [AR 475, 539, 554] She received injections for the elbow pain and had an MRI performed, where it was noted that there was a “small interstitial tear of the common extensor tendon origin with mild to moderate underlying tendinosis [and] moderate irregular scarring of the proximal lateral ulnar collateral ligament.” [AR 729, 753]

         B. Hearing Testimony

         In the first hearing, Plaintiff began by explaining her current job performing simple respite care six hours per week and expressed concern that she would lose this job because of her conditions. [AR 38-39] She stated that she was planning on receiving more injections, but there was a miscommunication with the doctor administering them. [Id.] She added that the injections merely dulled her pain and generally, on a scale from one-to-ten, her pain was at a five. [AR 40] She stated that she drove periodically, as little as possible, due to her pain. [AR 41] She described her areas of pain, including her lower back, upper back spasms, knee pain, radiating left leg pain, and numbness in her feet. [AR 42] When asked what made her pain worse, she responded that

Sitting for more than half an hour is -- is not good. Just a lot of activity bending over trying, you know, I can't push a regular vacuum. A lot of things make me hurt. I have to be calculating everything that I do to determine how much pain it's going to cause. I mean just driving up here today and having to drive home, I'm probably going to spend a good portion of tomorrow down because the pain from doing this driving is going to wreck me.

[AR 42-43] She reiterated her difficulty sitting and standing and that she best handled pain in a recliner or laying down. [AR 43-44] She stated that she asked Ms. Dufraux for a referral to a second opinion on her pain. [AR 45] In this second opinion, Plaintiff said that she may have fibromyalgia and was subsequently prescribed Lyrica which helped with the “weird little mystery pains, ” but did not help with her back pain. [AR 45-46] Plaintiff confirmed she is on antidepressants and that she has insomnia from her pain. [AR 47] The ALJ asked if Plaintiff cried when she performed her current job in apparent response to her crying during the hearing. [AR 47-48] Plaintiff's counsel commented that he was focusing on Plaintiff's back pain because there was not definitive testing of fibromyalgia. [AR 48] Plaintiff spoke about her elbow pain and that an MRI showed a tear in the tendon and irregular scaring on a ligament. [AR 48-49]

         Plaintiff's counsel questioned Plaintiff about her limitations and she stated that it was difficult for her to lift over 15 pounds and that it was difficult for her to use a cellphone or write because of her arm pain. [AR 50] Concerning her home life, Plaintiff said that she could vacuum and would sit on the floor to assist her roommate in emptying the dishwasher, but could not do anything outside. [AR 51] She stated she could cook less than she used too and focused on microwaved or processed food or her neighbor would bring her meals. [AR 52] She added that she took her great niece to school when needed and she could do light grocery shopping, but generally depended on her roommate for these tasks when he was available. [AR 52]

         Plaintiff spoke to an “exceptionally rough” experience with her consultative examiner. She explained that she had to drive a long way to get to the examiner's office and that he would not let her lay on the exam table to relieve her back pain. [AR 53-54] She added that the examiner excessively hit her elbow when doing the examination, leading her to cry from pain. [AR 54] The hearing adjourned as the ALJ needed additional records from Dr. Fuller. [AR 59]

         A few weeks later, a second hearing occurred. [AR 64] Plaintiff contested the repeated notation in Dr. Fuller's records concerning “90% improvement from different procedures.” [AR 65] She stated that she was never asked if certain procedures were working and only had a treatment conversation on the first time she visited Dr. Fuller. [AR 65] Therefore, she thought that Dr. Fuller was simply formulaically adding the notation without justification. [Id.] She felt that the procedures took away some of the sharp pain but were decreasing in effectiveness. [AR 67] She said that by no means was there 90 percent relief, and it was likely not 50 percent and that the records were “shocking” to her. [Id.]

         She expressed additional concern about record retrieval and accuracy, injection scheduling, and other issues with Dr. Fuller. [AR 66-69] She explained that she had never seen the records before and did not ask for a follow up because she was unaware that ...

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