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Weisblat-Dane v. Berryhill

United States District Court, D. Colorado

December 18, 2018

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



         Plaintiff, Michelle Deborah Weisblat-Dane, appeals from the Social Security Administration (“SSA”) Commissioner's final decision denying her application for widow's insurance benefits for a period of disability, 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 et. seq. 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.


         Plaintiff seeks judicial review of the Commissioner's decision denying her applications for disabled widow's insurance benefits and for supplemental security income. After these applications were initially denied on August 14, 2015, an Administrative Law Judge (“ALJ”) held an evidentiary hearing on January 26, 2017 [AR 74-105, 33-73], and thereafter issued a written ruling dated March 30, 2017. [AR 9-27] The ALJ denied her applications on the basis that Plaintiff was not disabled because her assessed residual functional capacity (“RFC”) did not preclude her from performing her past work as a bookkeeper (Step Four). [AR 25] Alternatively, the ALJ found that Plaintiff could perform work existing in significant numbers in the national economy considering her age, education, work experience and assessed RFC (Step Five). [AR 26]

         The SSA Appeals Council subsequently denied Plaintiff's administrative request for review of the ALJ's determination, without specific comment, making the SSA Commissioner's denial final. [AR 1-5] Plaintiff timely filed her complaint with this court seeking review of the Commissioner's decision.

         II. FACTS

         Plaintiff was born on December 14, 1963, and she has a least a high school education. [AR 26, 215, 679] Her prior employment includes work as a bookkeeper and as a driver. [AR 39-40, 215-16] Plaintiff alleged that she stopped working in December of 2010 due to her depression, blocked artery, compressed disc, degenerative disc disease, borderline personality disorder with post-traumatic stress disorder (PTSD), fibromyalgia, diabetes, pulmonary clogged artery disease, asthma, osteoarthritis, damaged cartilage, migraine headaches, and obesity. [AR 214] Plaintiff's alleged onset date was March 19, 2013 - the date of her last unsuccessful application for disability insurance benefits. [AR 12, 77]

         The medical evidence in the record regarding Plaintiff's physical health is summarized as follows. Prior to her alleged onset date in March of 2013, Plaintiff went to the emergency room, on February 29, 2012, reporting back pain. [AR 427-32] An MRI at that time revealed mild disc degeneration at ¶ 3-L4, and mild facet hypertrophy, moderate left and mild right hypertrophic facet osteoarthritis at ¶ 4-L5, and minimal disc degeneration with 2 mm left subligamentous disc protrusion and mild bilateral hypertrophic facet osteoarthritis at ¶ 5-S1. [AR 435]

         During September of 2012, Plaintiff saw Brenda E. Walker-Conner, M.D. at Peak Vista Community Health Centers, for shoulder pain and arthralgia, forearm pain, right knee pain, and lower back pain. [AR 405-406, 408] An x-ray of Plaintiff's lumbar spine on September 12, 2012, revealed no significant abnormalities and an x-ray of the cervical spine revealed mild cervical spine degenerative changes. [AR 436-37] During an initial physical therapy evaluation on September 25, 2012, Plaintiff reported pain, and that she was unable to sit for longer than two hours without her pain increasing “dramatically.” [AR 553-55] Dr. Walker-Conner assessed Plaintiff with degenerative disc disease, and referred her for a functional capacity evaluation and aquatherapy, on December 13, 2012. [AR 399-401]

         On February 2, 2013, Plaintiff again visited the emergency room because of worsening back and hip pain. [AR 545-46] On February 20, 2013, Plaintiff was evaluated by David Wilber, MPT, at the Memorial Health Systems Outpatient Rehabilitation Services. [AR 424-25] Mr. Wilber filled out a Physical Capacity Evaluation form indicating that Plaintiff could sit for a maximum of three hours and stand and walk for less than two hours in an eight-hour workday. [AR 425] He further indicated that she was unable to lift 5 pounds from the floor to her waist, but she could carry 5 pounds for ten feet at waist level. [AR 425] He also noted that Plaintiff needed to lie down periodically throughout the day due to pain and/or fatigue. [AR 425]

         After her alleged onset date of March 19, 2013, Plaintiff started seeing Mark Engelstad, M.D., at Partners In Health Family Medicine in April of 2013 for acute health care concerns, as well as her complaints of chronic joint pain, back pain, body-wide pain, chest pain, headaches, depression, anxiety, and borderline personality disorder. [AR 613-78, 712-41] Plaintiff also occasionally sought treatment at the hospital for acute sinusitis, acute bronchitis, and chronic gastrointestinal symptoms. [AR 392-95, 771-92]

         On April 17, 2013, Plaintiff underwent an x-ray of her cervical and thoracic spine, which revealed mild and mild-to moderate degenerative disc disease. [AR 648, 650-51] On May 3, 2013, Plaintiff reported to Dr. Engelstad that she was trying to walk about 5 miles per week. [AR 619] On July 9, 2013, Dr. Engelstad noted that Plaintiff was exercising “rigorously” twice weekly, and walking “intermittently” daily, but in his proposed plan for Plaintiff's degenerative disc disease he noted “severe mobility limitations.” [AR 620] In an office note dated February 21, 2014, Dr. Engelstad listed and assigned diagnosis codes for Type II diabetes, low back pain, acute sinusitis, UTI, fibromyalgia, borderline personality disorder, osteoarthrosis, and edema. [AR 623-624]

         On March 3, 2014, Plaintiff went to the emergency room reporting joint pain and a painful rash. [AR 485] Thereafter, on March 25, 2014, Plaintiff went to the University of Colorado Hospital for consultation regarding a possible connective tissue condition. [AR 470-80] On examination, Matthew Taylor, M.D., found that Plaintiff's joints looked and felt normal, had no deformities, no crepitus (catching or clicking), and no swelling, and that Plaintiff had normal reflexes and no neurological deficits. [AR 474] Dr. Taylor indicated that he was “uncertain as to how to best explain her issues” and stated as follows:

I do not believe she has Ehlers Danlos syndrome or any hypermobility syndrome. I do not believe she has Marian syndrome. While fibromyalgia and obesity could contribute to some joint pain and problems, the degree of problems as well as the joint dislocations (not demonstrated at the visit, but apparently recurrent) and the family history of these ...

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