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Tacey v. Colvin

United States District Court, D. Kansas

March 10, 2017

DAVID J. TACEY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL United States District Judge

         David J. Tacey appeals the final decision of the Commissioner of Social Security denying his claim for a period of disability and disability insurance benefits under Title II of the Social Act, 42 U.S.C. §§ 401 et seq. For reasons set forth below, the Court reverses the judgment of the Commissioner.

         I. Procedural Background

         On May 30, 2012, plaintiff filed an application for a period of disability and disability insurance benefits under Title II of the Social Security Act. He alleged that his disability began on April 15, 2012. See Tr. 10, 90. On August 13, 2012, the agency denied plaintiff's claim. On January 11, 2013, the agency denied plaintiff's claim on reconsideration. On November 25, 2013, an Administrative Law Judge (“ALJ”) held a hearing. See Tr. 35-76. On March 6, 2014, the ALJ found that plaintiff was not under a disability as defined in the Social Security Act. Tr. 29. On April 27, 2015, the Appeals Council denied plaintiff's request for review, adopting the ALJ judgment as the final decision of the Social Security Commissioner. Tr. 1-2. Plaintiff appealed to this Court the final decision of the Commissioner.

         II. Standard Of Review

         The Court reviews the Commissioner's decision to determine whether it is “free from legal error and supported by substantial evidence.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009); see 42 U.S.C. § 405(g). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Wall, 561 F.3d at 1052; Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). It requires “more than a scintilla, but less than a preponderance.” Wall, 561 F.3d at 1052; Lax, 489 F.3d at 1084. Whether the Commissioner's decision is supported by substantial evidence is based on the record as a whole. Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). Evidence is not substantial if it is “overwhelmed by other evidence in the record or constitutes mere conclusion.” Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005). To determine if the decision is supported by substantial evidence, the Court will not reweigh the evidence or retry the case, but will examine the record as a whole, including anything that may undercut or detract from the Commissioner's findings. Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).

         III. Framework For Analyzing Claims Of Disability

         Plaintiff bears the burden of proving disability under the SSA. Wall, 561 F.3d at 1062. Plaintiff is under a disability if he has a physical or mental impairment which prevents him from engaging in any substantial gainful activity, and which is expected to result in death or to last for a continuous period of at least 12 months. Thompson v. Sullivan, 987 F.2d 1482, 1486 (10th Cir. 1993) (citing 42 U.S.C. § 423(d)(1)(A)).

         The Commissioner uses a five-step sequential process to evaluate disability. 20 C.F.R. § 404.1520; Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)). In the first three steps, the Commissioner determines (1) whether plaintiff has engaged in substantial gainful activity since the alleged onset, (2) whether he has a severe impairment or combination of impairments and (3) whether the severity of any impairment is equivalent to one of the listed impairments that are so severe as to preclude substantial gainful activity. 20 C.F.R. § 404.1520(c), (d); see Williams, 844 F.2d at 750-51. If plaintiff satisfies steps one, two and three, the Commissioner will automatically find him disabled. If plaintiff satisfies steps one and two but not three, the analysis proceeds to step four.

         At step four, the ALJ must make specific factual findings regarding plaintiff's abilities in three phases. See Winfrey v. Chater, 92 F.3d 1017, 1023-25 (10th Cir. 1996). First, the ALJ determines plaintiff's physical and mental residual functioning capacity (“RFC”). Id. at 1023. Second, the ALJ determines the physical and mental demands of plaintiff's past relevant work. Id. Third, the ALJ determines whether despite the mental and/or physical limitations found in phase one, plaintiff has the ability to meet the job demands found in phase two. Id.; Henrie v. U.S. Dep't of Health & Human Servs., 13 F.3d 359, 361 (10th Cir. 1993). If plaintiff satisfies step four, i.e. if plaintiff shows that he is not capable of performing past relevant work, the burden shifts to the Commissioner to establish that plaintiff is capable of performing other work in the national economy. Williams, 844 F.2d at 750-51.

         IV. Facts

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

         A. Medical Evidence

         Plaintiff has a history of neck and back pain. See Tr. 603-26, 708-13, 739-41. In 1983, plaintiff suffered a left clavicle fracture in a motor-cross racing accident. Tr. 592. In 1984, plaintiff had surgery to repair his right AC joint after separating his shoulder. Tr. 600.

         In 1997, plaintiff had a cervical laminectomy at levels C3-6. Ex. 1F at 2. From December of 1997 through March of 1999, plaintiff received physical therapy for his neck pain. Beginning in 1999, various doctors have treated plaintiff's neck pain with epidural steroid injections (“ESIs”). From January of 2000 until the present, Dr. Melanie Smith has treated him for pain with chiropractic techniques which plaintiff found beneficial.

         From 2009 to 2013, Dr. Daniel Bruning and Dr. Jonathan French treated plaintiff for neck, shoulder and back pain. On February 11, 2009, plaintiff reported that to relieve constant pain he had taken Advil, Aleve, Naproxen, Etodolac and Hydrocodone. Dr. Bruning diagnosed plaintiff with cervicalgia, cervical disc displacement, spondylosis, stenosis and post-laminectomy syndrome. Dr. Bruning administered a series of ESIs. Ex. 6F at 60. Plaintiff followed up with Dr. Bruning twice in February of 2009 and reported that the injections resulted in minimal to 30 per cent pain relief. Id. at 54, 56.

         In April of 2010, plaintiff underwent radio frequency (“RF”) ablation treatment. On June 22, 2010, plaintiff told Dr. French that he was doing very well and was “at least 50% better.” Ex. 9F at 59-63. Plaintiff also reported he was very active: he swam three times a week, bicycled 60 miles a week and played golf and basketball. Plaintiff stated that he experienced pain “only after being very physically active.” Id.

         Between July of 2010 and May of 2011, Dr. Bruning administered several ESIs to plaintiff for lower back, hip and buttock pain. See Ex. 6F at 42, 71. Plaintiff generally reported that the ESIs relieved from 40 to 70 per cent of his pain for several months at a time.

         On June 8, 2011, Dr. French performed RF ablation on plaintiff's lumbar spine. On August 1, 2011, plaintiff reported that his low back and neck pain was 50-60 per cent better. Ex. 5F at 134-37. Dr. French noted that plaintiff had 5/5 strength in all muscle groups. Dr. French continued plaintiff on Naproxen for pain and Flexeril for a muscle relaxer.

         On November 30, 2011, Dr. Bruning administered a lumbar ESI. On December 1, 2011, Dr. French noted that plaintiff was doing quite well, although he had a flare of pain after playing 36 holes of golf, for which Dr. Bruning had given him the most recent ESI. Ex. 5F at 42.

         On December 28, 2011, plaintiff reported that he had 65 per cent improvement in pain over the last three weeks but still had some low back and leg pain. Dr. Bruning administered another lumbar ESI.

         In March and April of 2012, Dr. French treated plaintiff with additional RF ablation. Beginning in March of 2012, plaintiff reported consistent pain improvement. See Ex. 5F at 30-36.

         In May of 2012, plaintiff told Dr. Bruning that his medical insurance had expired and that he would seek medical care at the VA. Ex. 6F at 63.

         In September of 2012, plaintiff told Dr. French that he was very pleased with his pain relief and only rarely used Naproxen, Flexeril or Tramadol for pain. Ex. 10F at 6-7. He reported that he was still an avid golfer. On December 20, 2012, Dr. French administered ESI.

         On March 30, 2013, Dr. French performed RF ablation on plaintiff's lumbar spine. On April 11, 2013, plaintiff obtained a TENS unit to treat pain. Ex. 14F at 29-30. On May 9, 2013, plaintiff stated that he did intense aerobic exercise several times a week.

         On August 1, 2012, Dr. Sara Ackermann conducted a consultative physical examination of plaintiff. Ex 8F. Dr. Ackermann diagnosed plaintiff with diabetes, osteoarthritis, degenerative disk disease, radiculopathy and a history of acoustic neuroma. She opined that plaintiff could work at a light level of physical exertion with certain limitations in overhead lifting due to a limited range of shoulder and cervical spine motion. She concluded that in an eight-hour workday, plaintiff could sit for one to two hours at a time, stand for two to three hours at a time and walk for three to four hours at a time. He could lift and carry 25 pounds frequently and 30 pounds occasionally. Ex. 8F at 4.

         In September of 2012, the VA assessed plaintiff with a combined service-connected disability rating of 80 per cent as of February 15, 2011 based on the following conditions: right and left upper extremity radiculopathy; degenerative disc disease/cervical spine; osteoarthritis right shoulder; residual fracture of left clavicle; degenerative disc disease/osteoarthritis lumbar spine; osteoarthritis right knee; osteoarthritis, right hip; and left lower extremity radiculopathy. Ex. 1E, 2E.

         On October 9, 2012, Dr. Paul Kindling, state agency medical consultant, opined on plaintiff's RFC as follows: claimant can lift and/or carry ten pounds frequently, 20 pounds occasionally; stand and/or walk for a total of four hours and sit for a total of about six hours in an eight-hour workday; frequently climb ramps/stairs; never climb ladders/ropes/scaffolds; occasionally stoop, kneel, crouch and crawl; ...


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