United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. Wang United States Magistrate Judge
civil action arises under Titles II and XVI of the Social
Security Act (“Act”), 42 U.S.C. §§
401-33 and 1381-83(c) for review of the Commissioner of
Social Security Administration's
(“Commissioner” or “Defendant”) final
decision denying Plaintiff Debra Reeves's
(“Plaintiff” or “Ms. Reeves”)
applications for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”). Pursuant to the Parties' consent
[#15], this civil action was referred to this Magistrate
Judge for a decision on the merits. See [#20]; 28
U.S.C. § 636(c); Fed.R.Civ.P. 73; D.C.COLO.LCivR 72.2.
Upon review of the Parties' briefing, the entire case
file, the Administrative Record, and the applicable case law,
this court respectfully AFFIRMS the
Reeves, born December 15, 1956, alleges she became disabled
on December 31, 2013, at 57 years-of-age, due to paralysis on
her “right side” and complications from two
strokes. See [#13-3 at 72,  85, 102, 113; #13-5 at 216,
220; #13-6 at 238, 245, 266, 290]. In 2009, Plaintiff
suffered her first of two strokes, with the second being in
2011; Plaintiff attributes her dizziness and/or vertigo to
her second stroke. See [#13-7 at 319, 322, 341, 348;
#13-9 at 431].
and 2014 Ms. Reeves's sought treatment for her various
physical ailments from Rodney Harrison, M.D. Progress notes
dated October 26, 2012 indicate that Plaintiff “is
regularly dizzy when she attempts to do anything.”
[#13-7 at 319, 322]. Ms. Reeves did not receive treatment for
her dizziness at the time, and denied any blurred vision,
vertigo, muscle weakness, numbness, and lightheadedness,
among other symptoms. [Id. at 319-21, 323-24]. Dr.
Harrison's progress notes from 2014 similarly assess
dizziness and note that Ms. Reeves complains of dizziness
upon even minimal exertion, though Ms. Reeves received no
treatment for this ailment. See, e.g., [id.
at 350, 353-54].
J. Motycka, M.D. performed a comprehensive neurological
examination on June 30, 2015. See [#13-7 at 357].
Dr. Motycka noted that Ms. Reeves “claims she could
only walk 10 feet and then she gets dizzy and would have to
lean against something to walk, but this was not in evidence
as she exited the facility today.” See
[id. at 358]. Upon physical examination, Dr. Motycka
noted that Ms. Reeves was “well-developed,
well-nourished . . . in no apparent distress”; that Ms.
Reeves “move[d] easily through all positions needed for
examination, symmetrically, and without distress or
pain-facies developing”; that Ms. Reeve showed no signs
of “disorganization of any motor function of the
extremities”; that Ms. Reeves passed the mini-mental
status exam with “flying colors”; and that Ms.
Reeves's “personal appearance, thought content,
organization, mood/affect, behavior, judgment, and capability
to manage funds [were] all intact.” [Id. at
359-61]. Dr. Motycka assessed that Plaintiff had
“normal function.” [Id. at 361].
2016, Plaintiff presented to Aurora Denver Cardiology.
Progress notes list lightheadedness as one of Plaintiff's
many ailments, and reveal that Plaintiff reported her
dizziness was worse with rising but better with spread out
medication doses and that her vertigo is likely related to
her stroke. See [#13-7 at 373, 376-78, 380]. August
15, 2016 progress notes report lightheadedness as one of
Plaintiff's chief complaints and indicate a plan for
physical therapy as treatment for her vertigo. See
[id. at 367, 370]. Physical examinations revealed
that Ms. Reeves was alert and oriented, and none mentioned
any objective findings associated with her dizziness.
records from Green Valley Ranch Medical Clinic reveal that
Ms. Reeves complained of becoming “very dizzy both with
standing, walking, or even at time when just sitting.”
See [#13-8 at 387-88, 390, 393-94, 396, 399, 403].
On one occasion, progress notes indicated that Ms.
Reeves's dizziness responded positively to stopping
trimamterne. See [id. at 394]. On May 5,
2016, Plaintiff complained of “chronic dizziness that
started this [morning] when she woke up, ” which was
worse upon standing but alleviated by sitting and time and
which caused nausea. See [id. at 401].
Plaintiff's medical provider ruled out cerebellar stroke
and heart palpitations, but informed Plaintiff that
“many conditions can cause dizziness” and
directed her to increase her fluids, avoid caffeine, and
monitor how quickly she went from sitting to standing.
Reeves began physical therapy for her dizziness on November
30, 2016. See [#13-9 at 431]. The Initial
Examination revealed that Ms. Reeves complained of dizziness
following her second stroke in 2011, that changing positions
from sitting to standing, quick transfers out of bed, and
quick movements of her head upwards exacerbated her
dizziness, and that she fell walking up the stairs because of
her dizziness; the Initial Examination also revealed a
positive Romberg Test. See [id. at 431,
433]. On December 7, 2016, Ms. Reeves reported that her
dizziness remained unchanged. See [id. at
436]. On December 10, 2016, Ms. Reeves again stated that she
“feels about the same, ” but treatment notes
report Plaintiff was doing “well with exercises, has
minimal increase in [symptoms], ” that rest and
corrected technique relieved her symptoms, and that Ms.
Reeves tolerated added exercises with “mild dizziness
symptoms.” [Id. at 438]. Treatment notes dated
December 14 and16, 2016 reveal that Ms. Reeves reported no
change in her dizziness, and that Plaintiff experienced
increased dizziness with exercises, requiring frequent
breaks. [Id. at 440, 442]. Treatment notes from
December 21, 2016, however, indicated that Ms. Reeves did not
need to take as many breaks during exercises as needed
previously. See [id. at 444]. Two days
later, Ms. Reeves reported that she felt “good today
and doesn't feel as dizzy'; however, she was
“unable to finish her exercises” because of high
blood pressure and not feeling well. See
[id. at 446]. On December 28, 2016, Ms. Reeves
presented to physical therapy “feeling a little dizzy,
” but she completed “all exercises without many
rest breaks.” [Id. at 448].
Reeves continued physical therapy into 2017. Treatment notes
from January 3, 2017 note that she reported feeling good and
not dizzy on the bus ride over when keeping her head up, but
Ms. Reeves's physical examination results remained
largely unchanged since November 30, 2016, including a
positive Romberg test, and her dizziness symptoms continued
with “minimal change since starting therapy.”
[#13-9 at 450-55, 457, 459]. The next day, Ms. Reeves
reported that “she feels pretty good . . . [and] not
feeling as dizzy as usual”; however, she required
“more rest break [sic] during exercises due to feeling
dizzy and hot.” [Id. at 461]. On January 6,
2017, Ms. Reeves stated her dizziness was “constant in
nature” but that her balance had “improved at
home”; the treatment notes also indicated that Ms.
Reeves tolerated a progression of exercises. See
[id. at 463]. Treatment notes dated January 11, 2017
reveal that Ms. Reeves reported overall improvement with her
balance and strength and that she could do more at home
without feeling as dizzy despite unchanged physical
examination results; and though her progress was slow, the
treatment notes indicate that Ms. Reeves had “less
difficulty with walking due to improved balance” and
that she was halfway to completing several of her short-term
and long-term treatment goals. See [id. at
an approximately 30-day absence from physical therapy,
Plaintiff returned for treatment on February 24, 2017; the
treatment notes report that Plaintiff continued to feel dizzy
and off-balance and that Plaintiff had not made any progress
since her last visit. See [#13-9 at 471-74]. March
1, 2017 treatment notes indicate that Plaintiff reported
continued dizzy spells throughout her day and difficulty with
the Romberg test despite no adverse reactions to the
exercises. See [id. at 476]. Two days
later, Ms. Reeves stated that her dizziness persisted but was
decreased from her last session, and her treatment notes
reveal that she improved with the Romberg test (though
requiring close monitoring) and finished the session with no
adverse effects. See [id. at 478].
Treatment notes dated March 8 and 17, 2017, respectively,
indicate that Ms. Reeves reported gaining strength and
overall improvement despite lingering dizziness spells, and
that Ms. Reeves completed the sessions with no adverse
effects. See [id. at 480-84]. On March 24,
2017, Ms. Reeves reported feeling “a little
dizzy” but attributed that to therapy being at an
earlier time than usual, as well as that she feels like she
“had improvement in her symptoms since starting
therapy”; the treatment notes also revealed that Ms.
Reeves was “making progress with improved balance and
reduction in dizziness symptoms.” [Id. at
Reeves returned to physical therapy on April 5, 2017, and
reported “feeling off today” despite
“feeling decent on average since [her] last
session”; her physical examination results remained
unchanged and she had mild instability throughout the
session. See [id. at 488-90, 492].
Plaintiff's last physical therapy session occurred on
April 10, 2017; Ms. Reeves stated that “she is still
dizzy and having balance issues, ” and her treatment
notes indicate that she had increased loss of balance and
dizziness with “Romberg EC head shakes and nods,
” that she “demonstrates improving balance . . .
but is still far from safe in her balance, gait and
functional mobility, ” and that she “may never
obtain full safety with scenarios which challenge her
balance, particularly uneven ground and/or dark
hallways/rooms.” [Id. at 494]. Ms. Reeves was
discharged from physical therapy on May 10, 2017, having only
reached 50% completion of most of her short-term and
long-term goals. See [id. at 494-95].
January 7, 2015, Plaintiff protectively filed applications
for DIB and SSI. [#13-3 at 72, 85, 98, 101]. The Social
Security Administration denied Plaintiff's application
administratively on July 9, 2015, see [id.
at 98-101], and again on reconsideration, see
[id. at 124-27; #13-4 at 137-44]. Ms. Reeves
requested a hearing before an Administrative Law Judge
(“ALJ”), see [#13-4 at 136], which ALJ
Terrence Hugar (“the ALJ”) held on May 31, 2017,
see [#13-2 at 14, 32]. The ALJ received testimony
from the Plaintiff and Vocational Expert William Tisdale (the
“VE”) at the hearing. See [id.
testified that she can no longer work because she is
“dizzy all day long” and cannot walk that
well-symptoms she has dealt with since her second stroke in
2011. See [#13-2 at 36, 38, 42]. Ms. Reeves
explained that her symptoms cause her to fall; that looking
upwards exacerbates her dizziness; that she has to
“lean up against the wall” when walking down
stairs; and that some of her medications also cause
dizziness. See [id. at 39, 42-43].
Plaintiff continued that her doctors informed her that these
conditions “won't get any better.”
See [id. at 36-37]. Ms. Reeves testified
that she would work if she could and that she lives in the
basement of her friend's house, where she stays almost
all day, except to go to doctors' appointments, because
of her ailments. See [id. at 39-42]. Ms.
Reeves concluded her testimony by stating that she stopped
working in 2010 when her employer went out of business; she
had worked as a cashier and manager at a gas station and then
again as a cashier. See [id. at 42, 45].
then testified at the hearing. The VE first summarized
Plaintiff's past relevant work to include a cashier,
specific vocational preparation
(“SVP”) level 2, light exertion job; a retail
manager, SVP level 7, light exertion job; and a driver, SVP
level 3, medium exertion job. See [#13-2 at 47]. The
VE then considered the work an individual could perform when
limited to medium exertional jobs, with non-exertional
limitations of no exposure to unprotected heights and moving
mechanical parts, no concentrated exposure to extreme heat,
cold, and humidity, and no far acuity. See
[id.]. The VE testified that this individual could
perform Ms. Reeves's past relevant work as cashier and
retail manager, see [id.], and that such an
individual could perform these two jobs if limited to only
light exertional work, see [id. at 48]. The
VE continued that such an individual could also perform Ms.
Reeves's past relevant work as a cashier if limited to
light or medium exertional work and simple, routine, or
repetitive tasks. See [id. at 48-49]. The
VE continued that employees “could not be off task more
than about 10 to 15 percent of the workday or work week in
order to sustain employment.” [Id. at 49].
follow-up from Plaintiff's counsel, the VE testified that
an individual who required an afternoon nap of about an hour
or more would be incompatible with competitive employment.
See [#13-2 at 50-51]. The VE stated that the same
would be true of an individual that regularly fell on the job
and required additional medical assistance or needed to cease
working for the day. [Id. at 51]. Further, the VE
testified that an individual who could only occasionally
finger and reach could not perform Ms. Reeves's past
relevant work as a cashier. See [id.]. The
VE concluded that his testimony ...