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Turner v. Colvin

United States District Court, Tenth Circuit

September 30, 2013

CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant.


Kathryn H. Vratil, United States District Judge.

Michael Turner seeks review of the final decision of the Commissioner of Social Security to deny Social Security disability benefits and Supplement Security income benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. §§ 401 et seq. For reasons set forth below, the Court finds that the final decision of the Commissioner should be reversed and remanded for further proceedings.

I. Procedural Background

On December 16, 2008, plaintiff applied for disability benefits, alleging disability since January 11, 2003. Plaintiff filed prior concurrent applications for benefits on April 14, 2006, which the Commissioner denied on September 15, 2006. The ALJ found no basis for reopening the prior applications and res judicata therefore prevented the ALJ from considering whether plaintiff was disabled prior to September 16, 2006. See Tr. 13. The relevant time period in this case thus begins on September 16, 2006. In addition, plaintiff’s insured status under Title II of the Act expired on June 30, 2008.[2] Tr. 14.

The agency denied plaintiff’s application initially and upon reconsideration. Plaintiff requested a hearing. On December 10, 2010, plaintiff appeared with counsel at the hearing before Administrative Law Judge (“ALJ”) Susan Blaney. On April 28, 2011, ALJ Blaney found that plaintiff was able to perform jobs that exist in the economy and therefore was not disabled within the meaning of the Act. Doc. #11-4 at 27-28. On February 13, 2012, the Appeals Council denied plaintiff’s request for review. Thus, the ALJ decision stands as the final decision of the Commissioner.

II. Facts

The following is a brief summary of the evidence presented to the ALJ.

A. Plaintiff’s Testimony

Plaintiff was born on June 4, 1968. He has a high school education and additional training. Plaintiff testified to the following facts:

Plaintiff injured his back in June of 2002 while working as a certified nurses aid. Although he went back to work, he was fired in January of 2004 and he has not worked since. He is not able to work because of mental problems including depression and anger issues and physical problems including back and leg pain.

Plaintiff takes trazodone for depression and anger, Remeron for appetite and depression and Zyprexa for bipolar disorder. He has constant pain in his low back which radiates to his legs. Tr. 49-50. Plaintiff takes flexeril to relax his muscles and Tramadol and hydrocodone for back pain. The pain medications are somewhat effective, but he continues to have back pain. The pain medications cause him side effects including blurred vision and lack of concentration. He often has problems obtaining pain medication.

Plaintiff has tried various treatments for his back, including aqua therapy, physical therapy, traction, TNS unit and epidural steroid injections, but “nothing worked.” Tr. 62. Although doctors have recommended surgery, plaintiff has declined because of the risk.

Plaintiff has balance problems, can only stand for two to five minutes at a time, and cannot squat, crouch, crawl, stoop, kneel or bend. He has some problems with bladder control. He gets dizzy or lightheaded about four or five times a week for about 15 to 45 minutes. His hands go numb and shake about every other day, and he frequently drops things. It is painful for him to turn his head side to side, and very painful to point his head down.

Plaintiff lays in bed for 13 to 14 hours a day. The rest of the time he sits or goes back and forth between the bed and the couch. He does not do any cleaning or cooking, and does not drive because he can’t get into his pickup truck. He goes out of his house about five or six time a month. Plaintiff does not go anywhere without his fiancé for fear he will get in trouble and end up in jail.

The ALJ asked plaintiff about a statement that he had allegedly made to his psychiatrist in 2009 – that he could do push-ups for two hours and that he raked leaves for 14 hours straight. Plaintiff responded that he could no longer do pushups because of his back, and that he had never told his psychiatrist that he raked leaves for 14 hours straight.

Plaintiff began drinking in November or December of 2003, after he injured his back. When the ALJ asked plaintiff about his conflicting response on a 2009 questionnaire – that he had started to drink and use drugs in 1990 – plaintiff responded that “when it comes to trying to remember all that, I can’t do it.” Tr. 70.

Plaintiff testified that he last used drugs and alcohol in October of 2005. Tr. 46, 57, 71. When asked about his therapist’s statement in 2008 that plaintiff needed to be sober and not use illegal drugs in order to obtain housing, plaintiff said, “that’s not accurate” – that he was not taking illegal drugs in 2008. Tr. 44-45.

B. Tracy Bennett’s Testimony

Tracy Bennett, plaintiff’s fiancé, testified to the following facts:

Bennett has lived with plaintiff for the past year and a half, and she has known him for ten years. He has big knots in his back so that he cannot bend or pick things up. His legs and hands go numb and he drops things. Plaintiff takes pain medication when he can afford to, but sometimes he can not. Because of his physical condition, he cannot do any yard work or house work. Bennett and her daughter do all of the housework. Plaintiff does not drive.

Plaintiff has trouble controlling his anger, gets frustrated over “any little thing, ” and throws things, hollers and curses for up to 30 minutes or more. Tr. 73. He can not sleep for more than a few hours at night. She does not feel it is safe for plaintiff to go out alone, because she doesn’t know if he will hurt himself or “get into it” with someone and hurt them.

Plaintiff has a short attention span, poor memory and can not keep a schedule. Plaintiff can not manage money. Bennett does not believe that plaintiff could live independently.

C. Medical Evidence

1. Physical Impairments

On June 15, 2002, plaintiff injured his back while working as a nurse’s assistant. A Magnetic Resonance Imaging (“MRI”) scan performed on April 9, 2003 revealed degenerative disc disease at L4-5 with small posterior annular tear; grade I endplate changes; and L5-Sl disc space narrowing with disc desiccation and small focal annular tear. Exhibit lF at 126. An electromyography performed on April 19, 2003 showed abnormal electrodiagnostic study of the lower extremities displaying changes consistent with chronic right L4 and L5, as well as left L4, L5 and Sl radiculopathies. Exhibit lF at 120. On July 1, 2003, Dr. Robert Henderson scheduled plaintiff for an epidural steroid block. Dr. Henderson later recommended a two-level discectomy and fusion at L4-5 and L5-S1.

On March 8, 2005, Dr. David Wilhoite, an orthopedist, evaluated plaintiff and found no apparent motor or sensory deficits in the lower extremities. Plaintiff’s straight leg test was normal in the sitting position. He diagnosed degenerative disc disease L4-5 and L5-Sl. Doc. #11-11 at 42-43. Dr. Wilhoite found that open surgical intervention was not indicated, but that an intradiscal electrothermal annulopasty procedure at L4-5 might be considered.[3] Dr. Wilhoite stated as follows:

Mr. Turner has very equivocal findings on his physical examination. One would expect a markedly positive straight leg raising with somebody with as limited motion as he demonstrates. I feel there is a great deal of overlay related to this injury. I also understand that he is trying to get into rehab for his crack cocaine habit. ...

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