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Bagby v. Colvin

United States District Court, D. Kansas

March 13, 2017

ZACHARY BAGBY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL United States District Judge

         Zachary 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 proceedings.

         Procedural Background

         On 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.

         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 (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).

         Factual Background

         The following is a brief summary of the record.

         Plaintiff 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.

         I. Medical Evidence

         Plaintiff 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.

         From 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.

         II. Plaintiff's Testimony

         Plaintiff 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.

         Plaintiff 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. 87-90.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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 ...


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