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Aceves v. Commissioner, Social Security Administration

United States District Court, D. Colorado

September 3, 2019

JESSE RAY ACEVES, Plaintiff,
v.
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.

          OPINION AND ORDER REVERSING AND REMANDING THE COMMISSIONER'S DECISION

          MARCIA S. KRIEGER SENIOR JUDGE

         THIS MATTER comes before the Court on the Plaintiff's Complaint (#1), the Plaintiff's Opening Brief (#14), the Defendant's Response (#15), and the Plaintiff's Reply (#16). For the following reasons, the Commissioner's decision is reversed, and the matter is remanded for further proceedings.

         I. JURISDICTION

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

         II. BACKGROUND

         A. Procedural History

         Plaintiff Jesse Aceves (“Mr. Aceves”) seeks judicial review of a final decision by the Defendant Commissioner (“Commissioner”) denying his application for supplemental security income (“SSI”) under the Social Security Act. In June 2015, Mr. Aceves filed for SSI, claiming he became disabled as of December 20, 2014. (#11-5 at 219). His application was denied, and he requested an administrative hearing. Following a hearing before an Administrative Law Judge (“ALJ”), Mr. Aceves received an unfavorable decision in August 2017 (“Decision”). (#11-2 at 12-25). Mr. Aceves appealed that Decision to the Appeals Council. However, on July 26, 2018, the Appeals Council denied his Request for Review. (#11-2 at 1). Mr. Aceves now appeals the final agency action to this Court.

         B. Factual Background

         The Court offers a summary of the facts here and elaborates as necessary in its discussion. Also, because the dispositive issue in this appeal concerns the weight given to the treating physician's opinion as to Mr. Aceves' physical impairments, the Court summarizes only the medical evidence relevant to its decision.

         At the time of his alleged onset of disability, Mr. Aceves was 51 years old. He was 53 years old at the time of the administrative hearing before the ALJ. (#11-5 at 219; #11-2 at 44). Mr. Aceves has a high school education and was previously employed as a dishwasher, busser, stocking clerk, and construction flagger. (#11-6 at 296; #11-2 at 36-41).

         Mr. Aceves suffers from a congenital defect known as kyphosis and scoliosis in his spine (“kyphoscoliosis”[1]), which causes him chronic back pain, decreased lung capacity, and nighttime hypoxia. (#11-7 at 326-379).

         In March 2014, Deborah Brown, M.D., Mr. Aceves' treating provider, saw Mr. Aceves for his chronic lower back pain caused by scoliosis. Dr. Brown noted that Mr. Aceves experienced a constant dull ache associated with muscle spasms, and he could not stand or walk for prolonged periods of time. Dr. Brown reported that the pain medication Tramadol was working well for Mr. Aceves' pain, and he was able to manage activities of daily living and do limited household chores. He was also participating in physical therapy sessions. (#11-7 at 345-347). Upon her examination, Dr. Brown noted Mr. Aceves had a normal gait, but found “severe kytosis and rotation” along with a limited range of motion due to “severe curvature” of the spine. (#11-7 at 347). She also noted tenderness over the sacroiliac joints and muscle spasms in his “lumbar paraspinal muscles.” (#11-7 at 347). Dr. Brown diagnosed Mr. Aceves with kyphoscoliosis, chronic pain, and tachycardia. She referred Mr. Aceves to physical therapy; prescribed pain medications; and ordered chest x-rays, blood tests, a sleep study, and a pulse oxygen report. (#11-7 at 347). Then, Dr. Brown completed Mr. Aceves' disability paperwork and scheduled him for a follow up appointment. (#11-7 at 347).

         The March 17, 2014 pulse oxygen report showed Mr. Aceves had 93% oxygen saturation after six minutes of exercise. (#11-7 at 358). The March 2014 chest x-rays revealed “old-appearing compression fractures or wedge deformities;” “increased kyphosis involving the thoracic spine;” and “mild osteoarthritic changes involving the thoracic spine.” (#11-7 at 387). The sleep study showed hypoxia and sleep apnea (when Mr. Aceves slept on his back), and it was recommended that Mr. Aceves use supplemental oxygen at night and avoid sleeping on his back. (#11-7 at 348-357).

         In June 2014, Dr. Brown saw Mr. Aceves again for his kyphoscoliosis, which caused him “worsening” daily back pain and numbness and tingling in his feet. (#11-7 at 341). Upon her examination, Dr. Brown noted abnormalities with Mr. Aceves': general posture (antalgic gait and humpback); neck (limited range of motion); lungs (decreased breath sounds); gait and station; severe kyphosis; deep lordosis[2]; chest (barreled); and neurologic sensation. (#11-7 at 343-344). Dr. Brown assessed Mr. Aceves with: (1) worsening lower back pain; (2) a new onset of numbness or burning; and (3) hypoxia or a lack of oxygen due to his pectus carinatum[3]. (#11-7 at 344). Dr. Brown ordered another pulse oxygen report (which was conducted that same day), which showed that he had 89% oxygen saturation after six minutes of exercise. (#11-7 at 355). She further ordered MRI tests of Mr. Aceves' spine and additional x-rays. Following her examination, Dr. Brown opined that Mr. Aceves is “not able to maintain [full time] employment” as his medical conditions would be aggravated by “prolonged sitting, standing, walking and [are] complicated by hypoxia.” (#11-7 at 344).

         The June 2014 x-rays revealed “no significant change when compared to the chest x-ray of March 18, 2014.” (#11-7 at 385). The MRI of Mr. Aceves' thoracic spine showed “mild degenerative changes without significant stenosis or neuroforaminal narrowing.” (#11-7 at 377). The MRI of Mr. Aceves' lumbar spine showed “mild broad-based posterior bulge and mild facet hypertrophy” at ¶ 4-L5 resulting in “mild stenosis” and “mild posterior and right lateral disc bulge and mild facet hypertrophy” at ¶ 5-S1 resulting in “mild stenosis and right neuroforaminal narrowing. Due to the disc laterally, there may be impingement on the existing right L5 nerve root.” (#11-7 at 380-381).

         In July 2014, Dr. Brown referred Mr. Aceves to neurosurgeon Lee Krauth, M.D. Upon a review of Mr. Aceves' MRI tests, Dr. Krauth opined that Mr. Aceves had “mild degenerative changes in the spine and in the joints but nothing that is that out of the ordinary for someone 50 years old.” (#11-9 at 530). Dr. Krauth found no disc herniations, cauda equina compressions, or cord compressions and noted a normal sacrococcygeal region. Dr. Krauth concluded that “there is absolutely no significant surgical pathology on any of these studies and I basically feel that they are not really that abnormal for someone in his age group who is a smoker.” (#11-9 at 530). Upon an examination of Mr. Aceves, Dr. Krauth noted normal cranial nerves, deep tendon reflexes, motor strength, gait and station along with a “barrel chest and … a bit of exaggerated kyphosis.” (#11-9 at 530). Dr. Krauth opined that Mr. Aceves' MRI tests are “really not that abnormal, and I do not see any reason to limit his activities, based on any spine disease.” (#11-9 at 530). ...


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