United States District Court, D. Colorado
OPINION AND ORDER REVERSING AND REMANDING THE
S. KRIEGER SENIOR UNITED STATES DISTRICT JUDGE.
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.
Court has jurisdiction over an appeal from a final decision
of the Commissioner under 42 U.S.C. § 405(g).
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.(#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.
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).
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).
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).
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).
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).