United States District Court, D. Colorado
OPINION AND ORDER REVERSING AND REMANDING THE
S. KRIEGER SENIOR JUDGE
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
Court has jurisdiction over an appeal from a final decision
of the Commissioner under 42 U.S.C. § 405(g).
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.
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.
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).
Aceves suffers from a congenital defect known as kyphosis and
scoliosis in his spine
(“kyphoscoliosis”), which causes him chronic back
pain, decreased lung capacity, and nighttime hypoxia. (#11-7
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).
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).
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; 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. (#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).
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).
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). ...