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Barber v. Commissioner, Social Security Administration

United States District Court, D. Colorado

August 9, 2019




         THIS MATTER comes before the Court on the Plaintiff's Complaint (# 1), the Plaintiff's Opening Brief (# 15), the Defendant's Response (# 16), and the Plaintiff's Reply (#17). For the following reasons, the Commissioner's decision is reversed, and the matter is remanded for further proceedings.


         The Court has jurisdiction over an appeal from a final decision of the Commissioner under 42 U.S.C. § 405(g).


         A. Procedural History

         Plaintiff Patricia Barber (“Ms. Barber”) seeks judicial review of a final decision by the Defendant Commissioner (“Commissioner”) denying both her claim for disability insurance benefits (“DIB”) and application for supplemental security income (“SSI”) under the Social Security Act. In October 2011, Ms. Barber filed for DIB, claiming she became disabled as of August 16, 2010. (# 11-5 at 109; # 11-13 at 598). In July 2012, Ms. Barber filed for SSI. (#11-5 at 136). Following an initial hearing before an Administrative Law Judge (“ALJ”), Ms. Barber received an unfavorable decision in January 2013. (# 11-2 at 15-18). Ms. Barber appealed that decision to this Court, where it was reversed and remanded for a new hearing.[1](#11-14 at 662-78). In March 2016, Ms. Barber received a new hearing before an ALJ (“remand hearing”), which again resulted in an unfavorable decision (“Decision”). (# 11-13 at 593-96). Ms. Barber appealed that Decision to the Appeals Council. However, on April 4, 2018, the Appeals Counsel denied her Request for Review. (# 11-12 at 586-92). Ms. Barber now appeals the final agency action to this Court.

         B. Factual Background

         The Court summarizes only the medical evidence relevant to its decision. Here, the dispositive issue concerns the weight given to the treating physician's 2016 opinion as to Ms. Barber's restrictions which considered her new diagnosis of muscular dystrophy and related non-epileptic seizures. At the time of her alleged onset of disability, Ms. Barber was 48 years old. However, at the time of the remand hearing, she was 54 years old, which is categorized as “closely approaching advanced age.” (# 11-13 at 606). Ms. Barber has a high school education and was previously employed as an adjustment clerk, bookkeeper, and teacher's aide. (# 11-13 at 606).

         In August 2010, Ms. Barber was hospitalized for a seizure with no clear etiology. (# 11-8 at 290-91). In July 2011, despite undergoing a treatment program for epilepsy, Ms. Barber reported having continued seizures that were intensifying. (# 11-8 at 496-98). Ms. Barber underwent EEG and CT testing, which revealed the seizures were likely not caused by epilepsy (“definite epileptiform abnormalities”) or other “intracranial abnormalit[ies].” (# 11-18 at 845, 878).

         In June 2012, Sergio Murillo, M.D. began treating Ms. Barber for her “non epilipteic [sic] seizures” among other conditions. (# 11-11 at 548-49). On August 23, 2012, Dr. Murillo issued a “Seizures Medical Source Statement” noting Ms. Barber was having 20 seizures per month with about one-minute warning before the onset of an impending seizure. (# 11-11 at 560-63). Dr. Murillo opined that Ms. Barber's seizures were “non-convulsive” and caused a loss of consciousness. Migraine headaches, short attention span, and memory problems accompanied the seizures. (# 11-11 at 560, 563). Following a seizure, Ms. Barber experienced confusion, severe headaches, muscle strain, irritability, exhaustion, difficulties communicating, and disorientation. (# 11-11 at 561). Due to the seizures and the after-effects, Dr. Murillo opined that Ms. Barber was incapable of even “low stress” work and was unable to “concentrate, drive, operate machinery, cook or be in public.” (# 11-11 at 561). As to Ms. Barber's limitations, Dr. Murillo opined that she could sit for four hours with a 10-20 minute break, stand less than two hours in an eight-hour work day, lift 20 pounds occasionally, and could not kneel or work at a high altitude or at “heights.” (# 11-11 at 561-63). Dr. Murillo opined that Ms. Barber's impairments would cause her both “good days” and “bad days, ” and that she would likely miss “more than four days per month” from full time work. (# 11-11 at 563).

         In July 2012, Michael Greenberg, M.D., an agency non-examining physician, completed a Case Analysis. (# 11-11 at 533). After reviewing Ms. Barber's records and EEG test results, he concluded there was insufficient evidence “to establish ongoing non-epileptic seizures.” (#11-11 at 533).

         Following the initial 2013 hearing before the ALJ, Dr. Murillo continued treating Ms. Barber and recommended she undergo a muscle biopsy test to assess her continued complaints of muscle cramping and spasms. Based on his examinations spanning several years, Dr. Murillo suspected that Ms. Barber “may actually have a distal free [muscular disorder] [r]ather than a seizure disorder.” (# 11-21 at 1234-37). In May 2014, Gary Edward Lane, M.D. performed the muscle biopsy on Ms. Barber. (# 11-21 at 1202-03). On January 15, 2016, Dr. Murillo saw Ms. Barber for a “follow-up after [the] muscle biopsy” and noted that he had “some answers to her case.” (# 11-21 at 1107). The muscle biopsy revealed Ms. Barber had muscular dystrophy, and Dr. Murillo opined that her seizures were related to this diagnosis. Dr. Murillo found Ms. Barber “has tonic clonic modular activity to the part of muscular claudication presenting with ‘seizure' like pattern, ” which helps to “explain the symptoms and problems Ms. Barber has been having since August 2010[.]” (# 11-21 at 1229). In February 2016, Dr. Murillo completed an updated residual functional capacity (“RFC”) assessment based on Ms. Barber's new diagnosis of muscular dystrophy and related non-epileptic seizures (“2016 opinion”). (# 11-21 at 1229-31). He opined Ms. Barber could not: lift more than 20 pounds; sit more than two hours per work day; and be on her feet for more than .5 hours per work day. Dr. Murillo also limited Ms. Barber's reaching, handling, and fingering to rarely and found that her “condition interfere[d] with her ability to remember instructions and to focus and concentrate on tasks[.]” (# 11-21 at 1230-31). Dr. Murillo ultimately found Ms. Barber unable to do any full time work. (# 11-21 at 1231).

         C. The ...

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