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Cortes v. Colvin

United States District Court, D. Kansas

April 23, 2014

JORGE H. CORTES, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security Defendant.

MEMORANDUM AND ORDER

ERIC F. MELGREN, District Judge.

Plaintiff Jorge H. Cortes ("Plaintiff") seeks review of a final decision by Defendant, the Commissioner of Social Security ("Commissioner"), denying his applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act, respectively. In his pleadings, Plaintiff alleges multiple assignments of error concerning the assessment of his residual functional capacity, including a failure to properly consider third-party statements, weigh the opinions of treating sources and state examiners, and provide a satisfactory narrative, as well as assessment of credibility issues. Plaintiff also alleges error with regard to the Commissioner's decision that Plaintiff is able to return to his past relevant work. Upon review, the Court finds that the Commissioner's decision with regard to residual functional capacity was not supported by substantial evidence contained in the record. As such, the decision of the Commissioner is reversed and remanded for further consideration.

I. Factual and Procedural Background

Plaintiff's relevant medical issues date back to January 14, 2005, when Plaintiff's chiropractor, Terry Shroyer, DC ("Shroyer") took x-rays of Plaintiff's spine that revealed a subluxation of the L5, C1, and C6 vertebrae, a ten-millimeter apparent deficiency of the left leg, and loss of cervical curve with advanced phase two degenerative changes. In May 2009, Plaintiff returned to Shroyer for additional x-rays. These scans showed a subluxation of the L4 and C5 vertebrae, a thirteen-millimeter apparent deficiency of the left leg with compensatory scoliosis, increased scoliosis, and arthritic spurring of the L2 and C5 vertebrae. Shroyer recommended Plaintiff undergo spinal adjustments when necessary.

Plaintiff's treatment with Shroyer was sporadic, with only fourteen documented visits between January 2005 and August 2012. In December 2010, an examination revealed that Plaintiff had an unstable knee, which Shroyer noted was correctable with orthotics. Plaintiff declined treatment, citing financial concerns. Shroyer indicated that Plaintiff had not undergone any additional x-rays or scans, again citing financial concerns. Plaintiff was also reported to be chronically obese, with no weight recording in the past thirteen months. On June 2, 2011, Shroyer issued a medical statement that described Plaintiff's impairment as a progressive spinal condition that was causing advancing degenerative changes of the lumbar spine. Shroyer indicated that the condition was permanent and non-reversible and prevented Plaintiff from working.

Meanwhile, in February 2010, Plaintiff began treatment with Dr. Richard E. Lochamy, MD ("Dr. Lochamy") for high blood pressure. Plaintiff saw Dr. Lochamy three times in 2010 for medication management. On March 8, 2011, Dr. Lochamy noted that Plaintiff had lost his job and could no longer afford his medications. Plaintiff was again diagnosed as obese. Shortly thereafter, Plaintiff began seeing nurse practitioner Linda Bott, ARNP ("Bott"). In May 2011, Bott diagnosed Plaintiff with benign essential hypertension, diabetes mellitus, and hyperlipoproteinemia, type II-B.

During his visits with Bott, Plaintiff discussed his ongoing lower back and right shoulder pain. Plaintiff noted that he was seeing a chiropractor and usually got relief after his adjustments. Bott's notes indicated that Plaintiff consistently had a normal range of motion in his upper and lower extremities and no tenderness upon palpation of his spine. While Bott usually noted Plaintiff's unemployed status, her notes from a June 2011 appointment indicated that Plaintiff had "been working some, " which resulted in back pain not relieved by Plaintiff's usual course of ibuprofen. In October 2011, Plaintiff told Bott that he was applying for disability benefits.

In January 2012, Plaintiff traveled to his native Colombia for three months. While there, Plaintiff had an MRI of his lumbar and cervical spine. These scans revealed that Plaintiff suffered from bulging discs at the C4-C5 and C6-C7 vertebrae, mild cervical spondylosis, and intermuscular lipoma on his left side. The scans also showed protrusion of the L1-L2 discs, as well as foraminal stenosis, predominantly on his left side. Plaintiff was diagnosed with degenerative discopathy, lumbar spondylus osteoarthritis, and a Schmorl node. In June 2012, Bott noted that Plaintiff was doing well with his high blood pressure and spine and joint issues.

Plaintiff filed for both DIB and SSI on November 5, 2010, alleging disability beginning October 15, 2010. His claims were denied initially on June 2, 2011, and upon reconsideration on October 7, 2011. Plaintiff timely filed a request for an administrative hearing, which took place on July 3, 2012, before Administrative Law Judge Timothy G. Stueve ("ALJ Stueve"). Plaintiff, represented by counsel, appeared and testified.

At the time of the hearing, Plaintiff was fifty-seven years old and had been living in a friend's basement for the past year. Plaintiff graduated from high school in Colombia and had at least some additional education in the fields of electromechanical engineering and business administration. Plaintiff immigrated to the United States in 1978. When asked if he was receiving any income, Plaintiff testified that he had been receiving unemployment benefits for the past fifteen months after having been laid off from work as a professional residential and commercial painter in October 2010 when his employer ran out of work.

Plaintiff gave testimony about several of his impairments, including his high blood pressure, diabetes, and back and shoulder pain. Plaintiff indicated that his high blood pressure and diabetes were effectively managed by medication. Plaintiff testified that he had never had surgery for his back or shoulder issues, but was on pain medication twice per day. He stated that his chiropractic adjustments helped and the benefits usually lasted two weeks. Plaintiff also noted that he used BioFreeze on his joints at night. He indicated that he could walk for thirty minutes at a time but could not stand for long and required frequent breaks to sit down.

With regard to activities of daily living, Plaintiff indicated that he read, watched television, and drove short distances. Plaintiff also testified that he could get dressed by himself and would regularly visit friends, attend church activities, go fishing, and housesit a friend's ranch. He noted that he had difficulty with stairs and sometimes required naps of up to two hours. Plaintiff stated that, on average, he would spend four days per month in bed due to his back pain. During cross-examination, Plaintiff indicated that he had recently been up on a ladder helping a friend paint windows, although he testified that he usually did not go up on ladders.

In addition to Plaintiff's testimony, ALJ Stueve also sought the testimony of Vocational Expert Doug Lindall ("VE Lindall") to determine how, if at all, Plaintiff's impairments and limitations affected his ability to return to the workforce. VE Lindall described Plaintiff's past work as a painter and maintenance worker as medium in terms of exertion, although he noted that Plaintiff performed the job of painter at a heavy level of exertion. Based on this testimony, and upon his review of Plaintiff's entire record, ALJ Stueve asked the VE a series of hypothetical questions that included varying degrees of limitation on actions such as lifting, carrying, standing, walking, and communication. The ALJ also included limitations on the individual's need to miss work, lie down during the workday, and have a sit/stand option. On cross-examination, Plaintiff's counsel questioned the VE only as to whether Plaintiff's past relevant work could be performed at a light level of exertion, to which the VE responded in the negative.

On July 23, 2012, ALJ Stueve issued his decision, finding that Plaintiff suffered from a variety of severe impairments, including hypertension, diabetes mellitus, and degenerative disc disease. Despite these findings, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. ALJ Stueve concluded that Plaintiff retained the residual functional capacity to perform medium work, as that term is defined under Social Security Regulations, with the following limitations and/or exceptions: (1) only occasionally lift and/or carry fifty pounds and frequently lift and/or carry twenty-five pounds; (2) stand, walk, and sit for a total of six hours during an eight-hour workday; (3) receive job instruction only by ...


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