Soliday v. Saul

          OPINION AND ORDER

          N. Reid Neureiter United States Magistrate Judge

         The government determined that Plaintiff Michael Gene Soliday was not disabled for purposes of the Social Security Act. AR^[2] 21. Mr. Soliday has asked this Court to review that decision. The Court has jurisdiction under 42 U.S.C. § 405(g), and both parties have agreed to have this case decided by a U.S. Magistrate Judge under 28 U.S.C. § 636(c). Dkt. #12. This Court has carefully considered the Complaint (Dkt. #1), the Social Security Administrative (“SSA) Record (Dkt. #10), the parties' briefing (Dkt. ##14, 16-17), oral argument by the parties at the hearing on September 13, 2019, and the applicable case law. For the following reasons, the Court REVERSES the Commissioner's decision and REMANDS this matter for further proceedings.

         Factual Background

         Mr. Soliday had a stroke on April 2, 2015. He was hospitalized for two days and received inpatient care for another two weeks. AR 336-779. Mr. Soliday was diagnosed with right third-nerve palsy (damage to the nerve in his right eye), inconsistently distributed left sided weakness, left sided sensory disturbance and headaches. AR 340. It was noted shortly after his stroke that Mr. Soliday's depression was likely caused by the stroke. AR 767 & 772. After he was discharged, the record reflects that Mr. Soliday received months of outpatient therapy, including regular meetings with a therapist beginning in May 2016. AR 456-782, 833. On August 11, 2016 Mr. Soliday underwent surgery to correct damage to the nerve in his right eye, but still has double vision. AR 814- 15, 39.

         Mr. Soliday initially filed an application for disability benefits on June 30, 2015, and “protectively” filed an application for social security income on December 30, 2015. In his submission to the SSA dated September 19, 2015, Mr. Soliday claims he suffered from memory loss, loss of mobility on his left side, loss of use of his right eye, depression, extreme vertigo and dizziness, and no depth perception, describing his limitations by stating “my disability has made me lose my ability to drive, think, reason, remember, walk without help, stay home alone, take care of my family, do any kind of work. I am no longer able to do anything I done before.” AR 232-40. Mr. Soliday's wife completed a Third-Party Function Report in October 2015 in which she noted that Mr. Soliday was mentally challenged, suffered from memory loss, had difficulty controlling his left harm, dragged his left leg, had double vision, and was taking two hours to get dressed and take his medications. AR 241-42. In November 2015, Mr. Soliday saw a neurologist, Dr. Joy Dejong Lago, who concluded that Mr. Soliday had cognitive weaknesses, visual, motor and processing speed weaknesses, as well as depression, all of which she attributed to his stroke. AR 780.

         Mr. Soliday was evaluated by Dr. Kerry Kamer, D.O., in December 2015 for a consultive physical examination. AR 784-91. Dr. Kamer is a family medicine practitioner. Id. Dr. Kamer opined that Mr. Soliday had no sitting, standing, walking or manipulative limitations, but that he should be restricted from dangerous workplace conditions. Id. Dr. Kamer also concluded, on the basis of a “brief mental status review” that Mr. Soliday appeared to have no significant neurocognitive limitations. Id.

         On March 2, 2015, Dr. Gerald McIntosh, a neurologist who treated Mr. Soliday in the months after his stroke, completed a “medical assessment of ability to work.” AR 792-97. In his assessment, Dr. McIntosh indicated that Mr. Soliday could sit for no more than an hour, stand for 15 minutes, walk for five minutes, sit for two hours out of eight, and walk for 30 minutes out of eight hours, but was not able to climb stairs, avoid ordinary hazards, read ordinary print, or view a computer screen. Id.

         Beginning in April 2016 and continuing until at least November 2016, Mr. Soliday was treated for depression by a psychotherapist, Molly McLaren, Ph.D. AR 833-60. Dr. McLaren diagnosed Mr. Soliday with major depressive disorder and anxiety disorder. Id.

         Mr. Soliday maintains that he was and continues to be disabled as a result of the stroke. After his initial application was denied, Mr. Soliday requested a hearing, which was held on August 22, 2017. The ALJ issued her decision denying Mr. Soliday's application on October 31, 2017. Mr. Soliday submitted a request for review, with a new medical report prepared by Dr. Lago, which was denied on October 16, 2018.

         Legal Standard

         The Social Security Act defines disability as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death, or which has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). “This twelve-month duration requirement applies to the claimant's inability to engage in any substantial gainful activity, and not just his underlying impairment.” Lax, 489 F.3d at 1084. “In determining whether an individual's physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility . . . the Commissioner [ ] shall consider the combined effect of all of the individual's impairments without regard to whether any such impairment, if considered separately, would be of such severity.” 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G).

         The SSA uses a five-step sequential process for reviewing disability claims. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step process requires the ALJ to consider whether a claimant: (1) engaged in substantial gainful activity during the alleged period of disability; (2) had a severe impairment; (3) had a condition which met or equaled the severity of a listed impairment; (4) could return to her past relevant work; and, if not, (5) could perform other work in the national economy. See id.; Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988.) The claimant has the burden of proof through step four; the Social Security Administration has the burden of proof at step five. Lax, 489 F.3d at 1084.

         Standard of Review

         In Social Security appeals, the Court reviews the decision of the administrative law judge (“ALJ”) to determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied. See Pisciotta v. Astrue, 500 F.3d 1074, 1075 (10th Cir. 2007). “Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance.” Raymond v. Astrue, 621 F.3d 1269, 1271-72 (10th Cir. 2009) (internal quotation marks omitted). The Court “should, indeed must, exercise common sense” and “cannot insist on technical perfection.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). The Court cannot reweigh the evidence or its credibility. Lax, 489 F.3d at 1084.

         ALJ's Findings

         At the second step of the Commissioner's five-step sequence for making determinations, the ALJ found that Mr. Soliday “has the following severe impairments: status post stroke (thalamic infarct or cerebrovascular accident) and left shoulder disorder (20 CFR §§ 404.1520(c) and 416.920(c)).” AR 34. The ALJ further found that these medically determinable impairments significantly limit Mr. Soliday's ability to perform basic work activities, and stated that she included in her consideration Mr. Soliday's “thalamic pain complaints, left sided neurological issues and vision difficulty” that were associated with the stroke. AR 34-35.

         But, the ALJ concluded that Mr. Soliday's “medically determinable mental impairment of depression or anxiety (or both) does not cause more than minimal limitation in his ability to perform basic mental work activities.” AR 35. The ALJ found that while Mr. Soliday “may have had depression or anxiety when he first experienced a stroke, ” he had “substantial improvements within 12 months.” AR 36. The ALJ appears to base her decision with respect to Mr. Soliday's mental impairments on the fact that it was unclear to her ...