United States District Court, D. Colorado
OPINION AND ORDER
Reid Neureiter United States Magistrate Judge
government determined that Plaintiff Michael Gene Soliday was
not disabled for purposes of the Social Security Act.
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.
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.
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.
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.
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.
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.
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.
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),
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.
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.
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.
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 ...