United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL United States District Judge
Bagby appeals the final decision of the Commissioner of
Social Security to deny disability insurance benefits under
Title II of the Social Security Act (“SSA”), 42
U.S.C. §§ 401, et seq. For the reasons set
forth below, the Court finds that the final decision of the
Commissioner should be reversed and remanded for further
November 15, 2011, plaintiff filed an application for
disability insurance benefits, claiming disability from April
1, 2010 to December 31, 2011, the last date plaintiff was
insured for disability insurance benefits. Initially and on
reconsideration his claim was denied. At plaintiff's
request an administrative law judge (“ALJ”) held
a hearing on October 25, 2013. On November 5, 2013, the ALJ
determined that plaintiff was not disabled before December
31, 2011. Plaintiff requested Appeals Council review. The
Appeals Council denied plaintiff's request. Plaintiff now
appeals to this Court.
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
(quoting Lax v. Astrue, 489 F.3d 1080, 1084 (10th
Cir. 2007)). It requires “more than a scintilla, but
less than a preponderance.” Id. Whether the
Commissioner's decision is supported by substantial
evidence is based on the record taken 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).
following is a brief summary of the record.
was born August 9, 1983. He claims disability beginning on
April 1, 2010 because of Post Traumatic Stress Disorder
(“PTSD”), knee pain, migraines, tinnitus,
degenerative joint disease and traumatic brain injury.
Plaintiff did not engage in substantial gainful activity from
April 1, 2010 to December 31, 2011.
is 5'8” tall and weighed between 215 and 330 pounds
during the relevant period. Tr. 62-63. In December of 2006,
plaintiff was diagnosed with PTSD, depression, panic disorder
and alcohol abuse.
December of 2006 throughout the rest of the relevant period,
plaintiff continued to report symptoms of PTSD. Tr. 538-39,
704, 707, 709, 892, 1149. He reported trouble sleeping,
nightmares, panic attacks, intrusive thoughts and depression.
Tr. 910, 928, 1086, 1097-98, 1100-01. He also reported
difficulty concentrating. Tr. 535, 664. He cut himself on a
number of occasions. Tr. 609, 889, 1109-10. He abused
alcohol, but has been sober since April of 2010. Tr. 62, 76,
539-40, 1129, 1194. He sought treatment for intractable
headaches. Tr. 1870, 1848. He twice sought treatment for
lateral meniscus tears to his right knee and once sought
treatment for a fractured right ankle. Tr. 671-72, 1445,
2030. On March 5, 2008, plaintiff was diagnosed with
traumatic brain injury. Tr. 699. He was assessed again later
that year and found to have deficits in higher-level
cognitive processing. Tr. 655.
testified that he takes care of his personal grooming,
prepares his own meals, does his own dishes, cleans his own
house, takes out his own garbage and performs his own yard
work. Tr. 81-82. Plaintiff spends up to four hours per day on
the computer. Tr. 82. He exercises about two-and-a-half hours
each day and has lost nearly 100 pounds through diet and
exercise. Tr. 63.
has difficulty sleeping and has nightmares several times a
month. Tr. 88. He has anxiety around others, struggles with
anger and has flashbacks. Tr. 87, 88, 90. Plaintiff also has
trouble with memory, concentration and completing tasks. Tr.
experiences constant and bothersome right knee pain, but he
is able to stand for two hours at a time, walk a few miles
and sit for 30 minutes at a time. He has no problems with his
hands. Tr. 79-81.
testified that he has been attending college to gain exposure
to other people. Tr. 63-64. At the time of the hearing before
the ALJ, he had cut his course load from seven or eight
classes to just one, a Latin course. Tr. 64-65. Plaintiff was
struggling with the Latin course; he testified that it took
him eight to nine hours to do his homework. Tr. 65.
testified that he sees his brother three to four times a week
and sees a friend about once a month. Tr. 83. Plaintiff
attends church every day, sees movies occasionally and goes
out to eat once or twice a month. Tr. 83-84. He drives 50 to
100 miles each ...