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Washington v. Berryhill

United States District Court, D. Colorado

January 10, 2020

KATHERINE WASHINGTON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          ORDER

          MICHAEL E. HEGARTY UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Katherine Washington appeals from the Social Security Administration (“SSA”) Commissioner's final decision denying her application for disability and disability insurance benefits (“DIB”), originally filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-433. Jurisdiction is proper under 42 U.S.C. § 405(g). The parties have not requested oral argument, and the Court finds it would not materially assist the Court in its determination of the appeal. After consideration of the parties' briefs and the administrative record, the Court affirms in part and reverses in part the ALJ's decision, and remands the matter to the Commissioner for further consideration.

         BACKGROUND

         I. Procedural History

         Plaintiff seeks judicial review of the Commissioner's decision denying her application for DIB filed on November 10, 2015. Administrative Record (“AR”) 221-222. After the application was denied on February 25, 2016 (AR 67-72), an Administrative Law Judge (“ALJ”) scheduled a hearing upon the Plaintiff's request for August 29, 2017 (AR 115-166), at which Plaintiff was represented by counsel, and the Plaintiff and a vocational expert appeared. AR 60-66. The ALJ determined that, because the medical expert was unable to testify due to severe flooding in Houston, she would need to reschedule the hearing to a later date. Id. The hearing was rescheduled to December 4, 2017, at which Plaintiff was represented by counsel, and the Plaintiff, the medical expert, and a vocational expert testified. AR 31-59. The ALJ issued a written ruling on December 18, 2017 finding Plaintiff was not disabled starting on December 20, 2000 through December 31, 2005 because, considering Plaintiff's age, experience, and residual functional capacity, Plaintiff could successfully adjust to other work existing in significant numbers in the national economy. AR 12-25. On September 21, 2018, the SSA Appeals Council denied Plaintiff's administrative request for review of the ALJ's determination, making the SSA Commissioner's denial final for the purpose of judicial review. AR 1-6. See 20 C.F.R. § 404.981. Plaintiff timely filed her complaint with this Court seeking review of the Commissioner's final decision.

         II. Plaintiff's Alleged Conditions

         Plaintiff was born on December 12, 1973; she was forty-one years old when she filed her application for DIB on November 10, 2015. AR 221. Plaintiff claims she became disabled on December 20, 2000 [id.] and reported that she was limited in her ability to work due to “PTSD [post-traumatic stress disorder], lumbar [strain], headaches, leg, shoulder, feet, hands.” AR 67-68. On August 23, 2017, Plaintiff provided a report of her diagnoses, symptoms, and medications, in which she reported she has been diagnosed with sarcoidosis (stage 2), cranial nerve palsy, seizure disorder, osteoarthritis, chronic migraines from traumatic brain injury, white brain matter disease, ganglion cyst formation (right hand), right ACL sprain, sleep apnea, minimal diverticulosis, hand tremors, pancreatic duct stones, anemia, partial amputation of right distal phalange, acquired spinal stenosis, lower extremity numbness, digestive symptoms (post Cholecystectomy), PTSD, and bipolar I disorder. AR 269-279.

         No party disputes that Plaintiff's “date last insured” for purposes of social security benefits was December 31, 2005; thus, the Plaintiff must establish a “disability” on or before that date to be entitled to a period of disability and disability insurance benefits. Plaintiff contends that she was (and has been) disabled since December 20, 2000; the medical record presented in this case dates back to 1999 and is more than 2, 500 pages in length. Therefore, in describing Plaintiff's medical history, the Court will focus primarily on those records cited by the parties and the ALJ in this case.

         On January 14, 1999, Sherrie Somers, M.D. issued a report following a Compensation and Pension (“C&P”) Examination she conducted of the Plaintiff purportedly to determine whether Plaintiff was entitled to benefits from the Veterans Administration. AR 323-331. Dr. Somers diagnosed Plaintiff with lumbosacral strain, bilateral hip strain, migraine headaches (“fairly well controlled on Midrin”), and lower extremity limited range of motion “secondary” to lumbosacral strain (AR 328), all arising from Plaintiff's fall from the back of an ambulance in June 1997 during her military service (AR 323). Thereafter, Plaintiff presented on May 11, 2000 “to establish PCP” and was seen by Eric Rodgers, NP, who referred her to the “rehabilitation” department. AR 344-347. On May 24, 2000, Plaintiff presented to Nancy Cutter, M.D. in “rehab, ” who “order[ed] MRI and EMG to rule out radiculopathy” for the back pain and “plan[ned] neurology consult” for the headaches. AR 344.

         On August 22, 2000, Plaintiff underwent another C&P examination with Genet D'Arcy, M.D., who reported that Plaintiff left the military in October 1998 due to her back condition, for which Plaintiff was sent to Walter Reed Hospital and underwent several months of physical therapy. Plaintiff reported that she experienced “pain most days” during which she would need to lie down for an hour or two; once per month or once every other month, she could not get out of bed; she could not sit for more than 30-45 minutes, ride in a car more than fifteen minutes, and stand more than twenty minutes, and she used a “Canadian crutch” to ambulate on walks longer than five minutes; her sleep was interrupted by pain and she rarely took her medications because they “ma[d]e her very sleepy”; she lived with her elderly mother and did some minimal housework, but nothing strenuous; she experienced some minimal urinary incontinence, weakness in her legs, and numbness in her right buttocks, right hand, and right foot; she carried groceries up to a quart of milk and friends at school carried her books; she engaged in exercise by walking, swimming, and biking (stationary) for a total of fifteen minutes; and, she experienced minor headaches twice a week and “intense” headaches two or three times per month which lasted approximately four hours and caused her to feel dizzy and nauseous. AR 334-337; 1375-1379. Noting that she did not have access to prior medical records, Dr. D'Arcy diagnosed Plaintiff with lumbar strain and migraine headaches. AR 337. On October 13, 2000, Dr. D'Arcy noted (by hand) that she reviewed Plaintiff's chart (but “could not locate MRI results”), and found it consistent with Plaintiff's reported history. AR 333. She also noted that “Veteran is unemployable. Her ability to walk, stand, sit, carry, lie down etc. is all severely limited to the extent to preclude employment. The lumbosacral problems are the cause of this severe functional limitation.” Id.

         During the following year, Plaintiff did not “show” for an “EMG consult” on August 28, 2000 nor for a “neurology consult” on July 6, 2001. AR 1374. Plaintiff attended an “annual” gynecological examination on August 22, 2001, at which she reported that she had experienced a “back injury” and “migraines, ” but was “otherwise healthy, ” and that she exercised by “tread[ing] water - 3 x week”; the provider noted that Plaintiff appeared “fit” and “did feel some feel some depression with her mom's death.” AR 1370. The next record reflects that Plaintiff presented to Meletios J. Fotinos, M.D. on November 5, 2002 asserting that she wished “to quit smoking.” AR 1366-1367. Plaintiff reported to Dr. Fotinos that she experienced a chronic pain disorder in her low back and that she had no history of psychiatric disorders, such as PTSD, Bipolar Disorder, Major Depression, or Anxiety Disorder. AR 1368. In February 2003, Plaintiff attended a gynecological examination (AR 1361-1363) and in June 2003, Plaintiff presented to NP Rodgers for low TSH result; TSH test was normal that day and there was no report of “functional limitations.” AR 1357-1359. She also presented to NP Rodgers in December 2003 for suspected “influenza.” AR 1353-1354. In 2004, Plaintiff attended an “annual” gynecological examination in June, at which she reported a “back injury” and “migraines” but she was “otherwise healthy” and her depression screen was negative. AR 1349-1351.

         In 2005, Plaintiff presented for an annual “well woman examination” in March and reported that, for exercise, she was walking and treading water three times weekly. AR 1343-1347. On May 4, 2005, Plaintiff presented to Bonnie Brooks, M.D., who noted Plaintiff “transfer[red] from Eric Rodgers, NP, last seen 12/2003.” Plaintiff reported that she was experiencing “severe migraines. Fell, hit head with headache 3 weeks ago” and felt “vision changes, “ ”nausea, ” and like “her head is going to explode”; “has back pain, usually around migraines . . . may be related to fall 3 weeks ago”; she “exercises/ swimming/yoga”; she was experiencing daily diarrhea and pain in her left knee following her fall in April 2005. AR 1337-1342. At a follow-up appointment on June 13, 2005, Plaintiff reported that her left knee was “improving” and Plaintiff's screenings for PTSD and depression were negative. AR 1331-1336. On June 22, 2005, Dr. Brooks noted that she reviewed Plaintiff's “labs, ” which were “overall much better.” AR 1331. On November 17, 2005, Plaintiff “followed-up” with Dr. Brooks at which time she reported she was “very stressed, maybe depressed, ” and that she was going to “graduate from college this winter, then take MCAT this spring.” AR 1320-1326. Plaintiff also reported that her “appetite [was] good”; she was “exercising on campus, feels she could exercise more”; her “left knee [was] ‘ok'”; she was “sleeping thru migraine headaches - feels ok about this also”; and, the diarrhea “resolved on [its] own with diet changes.” Id.

         On July 19, 2017, Plaintiff presented to Max Wachtel, Ph.D. for a psychological evaluation at the request of her legal counsel. See AR 2583-2596. With respect to the time period at issue here, Plaintiff reported to Dr. Wachtel that she was gang raped in high school and raped while in military service, and “has had significant issues with depression, mania, and PTSD since these two traumatic events.” AR 2587-2588. She also reported that she worked for approximately four years before joining the Army, where she “wanted to stay . . . for 20 years, ” but “‘that didn't work out' because of the traumatic rape.” AR 2588; see also AR 2590 (Plaintiff “wanted to stay in the military for 20 years and loved her time in the service until she was raped by a fellow military member.”). She also said “she had significant problems with maintaining employment because of her mental health issues” and “she tried to obtain and keep jobs after her college graduations . . . but was unable to do so because of her severe mental health issues.” Id. Plaintiff reported that she had a “caregiver because she falls frequently and has numerous migraines and seizures from a traumatic brain injury she sustained in the Army.” AR 2589. Plaintiff “indicated that she has significant physical health problems, including a traumatic brain injury from the Army, migraines, back problems, chronic pain, and seizures.” AR 2590. She reported that she “attempted to work in biology laboratories after 2000 but has struggled to maintain employment because of her mental health symptoms.” Id. Dr. Wachtel diagnosed Plaintiff with PTSD and Bipolar Disorder, and opined that Plaintiff's condition “began in her teen years when she experienced her first trauma. Her mental state deteriorated over time, and the condition became disabling in roughly 2000, when she stopped working.” AR 2595.

         In July 2014, Plaintiff began seeing Ana Balzar, LCSW, on a monthly basis for mental health issues. AR 2602. Ms. Balzar completed a “Mental Disability Capacity Assessment” for Plaintiff on August 16, 2017, in which she stated her diagnoses of “PTSD, Bipolar Mood Disorder I” and noted her belief that the onset of these conditions occurred in October 2000. AR 2602-2604. Ms. Balzar noted her assessment of Plaintiff's ability to function as follows: “moderate” limitation on Plaintiff's ability to understand, remember, or apply information, and “marked extreme” limitations on Plaintiff's abilities to interact with others, concentrate, persist, or maintain pace, and adapt or manage oneself. AR 2603. She assessed Plaintiff a Global Assessment of Functioning (GAF) score of 40.[1] AR 2602.

         III. Hearing Testimony

         At the rescheduled hearing on December 4, 2017, Plaintiff (who appeared with counsel), the medical expert, Steven Goldstein, M.D., and a vocational expert, Cyndee Burnette, testified. AR 31-59. Following no objection from the Plaintiff, the ALJ began by questioning Dr. Goldstein, who had prepared notes from medical records outside of the disability period of December 2000 through December 31, 2005; the ALJ determined to allow Dr. Goldstein additional time to access and review the earlier records. AR 37-39.

         The ALJ proceeded to question the Plaintiff, who testified that at the time of the hearing, she lived with a caregiver who had a full-time job at the VA; another caregiver “checked” on her; she did not drive unless it was necessary; in 2016, she was in a car accident in which she was stationary and sitting in the driver's seat; at the time of she was taking twenty-nine medications; and, during the day, while watching television, she would alternate between laying down and standing up. AR 40-42. With respect to the relevant disability period, Plaintiff testified that she had not worked since 2000; standing became “a little difficult”; a “battle buddy” Freda Davis cooked, cleaned, and drove for her; her “two major issues” were her back injury and migraines; she suffered from anxiety and paranoia and did not like “being around other people; and it was “difficult” to stand, sit, and lift. AR 42-45. When asked by her attorney, Plaintiff testified that as a pharmacy technician, it became difficult to deal with the public; she had a “hard time with men” and had “crazy flashbacks”; she had difficulty remembering the medications; she had difficulty walking up and down stairs; she was anxious about calling patients; and she called out sick from work “a lot.” AR 45-46. Plaintiff also testified that she attended school “off and on” for “general studies at that time, but [she] didn't go” because she had to take the bus and she felt there were “too many people in close quarters.” AR 46-47. For her physical impairments, Plaintiff attested that she took Ibuprofen for years that caused stomach pain; she also engaged in physical therapy and would lay down when she was in pain; and, she had three to four migraines per week lasting more than three hours each. AR 47-50.

         The ALJ proceeded to question Dr. Goldstein who listed the following impairments for the Plaintiff during the disability period: lumbar sprain, knee swelling, migraine headaches, and chronic diarrhea. AR 51. He opined that none of the impairments, separately or combined, met or equaled the Social Security Commissioner's medical listings, but the impairments caused functional limitations as follows: reduced to light level of activities; placed within five to ten minutes of a restroom; and, avoid all pulmonary irritants. AR 51-53. When asked by Plaintiff's attorney about the application of Listing 11.02 to the migraine headaches, Dr. Goldstein testified that only “complicated migraines” could fall under the listing and he saw nothing in the record indicating that Plaintiff suffered from such migraines. AR 54-55.

         The ALJ then turned to the vocational expert, Ms. Burnett, who testified that an individual with Plaintiff's age, experience and education for the period, 2000-2005, and the following limitations - “perform a full range of light capacities, except would need to be within five to ten minutes of a bathroom and could not be around pulmonary irritants, should have no interaction with the general public and occasional interaction with coworkers and supervisors” - could perform the jobs of “office helper, ” “mail room clerk, ” and “routing clerk”; if the limitations were further restricted to being “late or absent three times a month, ” all employment would be eliminated. AR 56-57. In answer to Plaintiff's attorney's questions, Ms. Burnette testified that the routing clerk and officer helper were listed at “reasoning level two, ” and the mail room clerk is at “reasoning level three”; and, all of these positions would be eliminated if the employee were “off task 25 percent of the time” or needed to lie down. AR 57-58.

         The ALJ issued an unfavorable decision on December 21, 2017. AR 12-25.

         LEGAL STANDARDS

         To qualify for benefits under sections 216(i) and 223 of the SSA, an individual must meet the insured status requirements of these sections, be under age 65, file an application for DIB and/or SSI for a period of disability, and be “disabled” as defined by the SSA. 42 U.S.C. §§ 416(i), 423, 1382.

         I. SSA's Five-Step Process for Determining Disability

         Here, the Court will review the ALJ's application of the five-step sequential evaluation process used to determine whether an adult claimant is “disabled” under Title II of the Social Security Act, which is generally defined 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); see also Bowen v. Yuckert, 482 U.S. 137, 140 (1987).

         Step One determines whether the claimant is presently engaged in substantial gainful activity. If she is, disability benefits are denied. See 20 C.F.R. § 404.1520. Step Two is a determination of whether the claimant has a medically severe impairment or combination of impairments as governed by 20 C.F.R. § 404.1520(c). If the claimant is unable to show that her impairment(s) would have more than a minimal effect on her ability to do basic work activities, she is not eligible for disability benefits. Id. Step Three determines whether the impairment is equivalent to one of a number of listed impairments deemed to be so severe as to preclude substantial gainful employment. See 20 C.F.R. § 404.1520(d). If the impairment is not listed, she is not presumed to be conclusively disabled. Step Four then requires the claimant to show that her impairment(s) and assessed residual functional capacity (“RFC”) prevent her from performing work that she has performed in the past. If the claimant is able to perform her previous work, the claimant is not disabled. See 20 C.F.R. § 404.1520(e), (f). Finally, if the claimant establishes a prima facie case of disability based on the four steps as discussed, the analysis proceeds to Step Five where the SSA Commissioner has the burden to demonstrate that the claimant has the RFC to perform other work in the national economy in view of her age, education, and work experience. See 20 C.F.R. § 404.1520(g).

         II. ...


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