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Zachary v. Saul

United States District Court, D. Kansas

June 19, 2019

MARCA A. ZACHARY, Plaintiff,
ANDREW M. SAUL,[*] Commissioner of Social Security, Defendant.



         Marca A. Zachary appeals the final decision of the Commissioner of Social Security to deny disability benefits under Title II of the Social Security Act (“SSA”), 42 U.S.C. §§ 401-434. For reasons stated below, the Court reverses the Commissioner's decision and remands for further proceedings.

         Procedural Background

         On January 29, 2015, plaintiff filed a protective application for a period of disability and disability insurance benefits, alleging that her disability began on November 18, 2014. Transcript Of Administrative Record (“Tr.”), attached to Answer (Doc. #8) filed August 27, 2018 at 15. She later amended her alleged onset date to January 1, 2015. Initially and upon reconsideration, the agency denied plaintiff's application. At plaintiff's request, an administrative law judge (“ALJ”) held a hearing on January 25, 2017. On May 12, 2017, the ALJ determined that plaintiff was not disabled within the meaning of the SSA. Plaintiff requested review by the Appeals Council, which denied her request. Plaintiff appeals.

         Legal Standards

         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. “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 substantial evidence supports the decision, 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

         Highly summarized, the record states as follows:

         Plaintiff was born on April 29, 1976. She claims disability beginning on January 1, 2015 because of ankylosing spondylitis, [1] arthritis throughout the body, sacroiliitis, fibromyalgia, osteoarthritis lumbar radiculopathy, constant backaches and high blood pressure. Tr. 207.

         I. Medical Evidence

         Plaintiff is approximately 6 feet tall. She weighed 326 pounds on July 1, 2014 and 420 pounds on January 5, 2017.

         On November 27, 2013, plaintiff's treating rheumatologist, Shashank Radadiya, M.D., noted that the claimant was taking Humira for her ankylosing spondylitis. Dr. Radadiya reported that plaintiff complained of moderate to severe pain in her lower back and left hip, and that activity aggravated her symptoms. Tr. 23. On January 27, 2014, Dr. Radadiya noted that plaintiff had severe musculoskeletal pain and was experiencing activity limitation and morning stiffness. Tr. 457. On May 28, 2014, Dr. Radadiya again noted that plaintiff reported severe and persistent musculoskeletal pain, aggravated by activity, and that she was limping. Tr. 501-02. Nothing was helping her pain, her left knee was getting worse and she was experiencing limitation of activity. Id. On July 24, 2014, Dr. Radadiya recorded that plaintiff reported moderate to severe pain and that activity aggravated her symptoms. Plaintiff was limping and experiencing activity limitation and stiffness. Tr. 513. On July 29, 2014, Dr. Radadiya noted that plaintiff was experiencing activity limitation and moderate to severe pain. Tr. 518. On November 18, 2014, Dr. Radadiya noted that plaintiff's ankylosing spondylitis was “under good control” and continued her on medications. On April 8, 2015, Dr. Radadiya noted that plaintiff reported severe musculoskeletal pain that activity aggravated. Tr. 642. On May 7 and June 16, 2015, Dr. Radadiya noted that plaintiff reported moderate to severe persistent musculoskeletal pain that was worsening. Tr. 656, 664. On September 16, 2015, plaintiff told Dr. Radadiya that she had been unable to obtain her Humira because of an insurance issue and accordingly, that her pain was worsening, and she had to use a walker. Dr. Radadiya stated that plaintiff could safely use a walker. Tr. 23.

         With respect to plaintiff's knee impairment, Dr. Radadiya diagnosed her with osteoarthritis and administered injections into either her right or left knee on February 18, May 12, May 28, July 24, July 29 and October 21, 2014 and April 8, 2015. Tr. 24. On July 25, 2016, an MRI of plaintiff's left knee revealed severe primary osteoarthritis. Id.

         On December 2, 2013, two pain management specialists, Drs. Dawood Sayed and Frank Sahli, determined that an MRI of plaintiff's lumbar spine indicated changes consistent with mild degenerative disc disease of the lumbar spinal facets. Tr. 23. Plaintiff reported that she had experienced chronic back pain since the mid-1990s and had received multiple epidural steroid injections that had provided pain relief. She reported worsening pain around her sacroiliac (“SI”) joint with radiation to her left leg. Any activity, working or exercise worsened her pain. She complained of numbness radiating down her left leg to her knee. She took ibuprofen, hydrocodone and acetaminophen, which mildly relieved her pain. Id. Drs. Sayed and Sahli recorded the following findings: left-sided SI joint tenderness and pain that is exacerbated by extension of the lower back; negative straight-leg test; normal balance and gait; bilaterally equal strength. Drs. Sayed and Sahli noted a diagnostic impression of “lower back pain most consistent with facet syndrome.”[2] On January 3 and January 17, 2014, Dr. Sayed performed two diagnostic medial branch block procedures on plaintiff. Tr. 24.

         From March of 2014 to March of 2015, Dr. Brian Jones, a pain management specialist, gave plaintiff a series of lumbar epidural steroid injections. Id. In March of 2015, Dr. Jones noted that plaintiff's paraspinous musculature was diffusely tender in the lumbar distribution of the mid and lower lumbar bilaterally but without trigger points. Her motor examination was “strong with 5/5 dorsiflexion, extension, quadriceps, and hamstring flexion bilaterally.” Tr. 24.

         As to plaintiff's mental impairments, on May 2, 2016, Pratip Patel, M.D., her primary medical doctor, diagnosed her with anxiety. He prescribed Lexapro and advised her to see a psychiatrist. Dr. Patel told plaintiff that he would not prescribe Xanax for her. Tr. 24.

         On June 21, 2016, Kelly Bisel, D.O., a staff psychiatrist at Wyandot Mental Health Center, diagnosed plaintiff with generalized anxiety disorder and major depressive disorder, single episode, moderate. Dr. Bisel prescribed Celexa.

         At a follow-up on August 25, 2016, plaintiff stated that she was struggling to take the Celexa. Tr. 25. On September 2, 2016, plaintiff told Dr. Patel that she was depressed but admitted that she was not taking “most of the medications prescribed to her.” Sometimes she forgot to take them and other times she just did not want to take them. Tr. 25.

         Dr. Radadiya submitted a medical source statement regarding plaintiff's functional limitations. Tr. 819-21. Dr. Radadiya opined that plaintiff can occasionally and frequently lift and carry ten pounds; can sit for less than two hours in an eight-hour day; must periodically alternate sitting, standing or walking; can only sit for 20 minutes before changing position; can only stand for ten minutes before changing position; must walk around every ten minutes for five to ten minutes; requires the opportunity to shift at will from sitting or standing/walking up to four times per day. Tr. 819. Dr. Radadiya determined that plaintiff can occasionally twist, stoop and climb stairs but can never crouch or climb ladders, and that her impairment affects her ability to reach and pull. Tr. 820. Dr. Radadiya opined that plaintiff should avoid even moderate exposure to extreme cold and that she will on average miss work more than three times per month. Tr. 820-21.

         Two state agency medical consultants, Dr. Dick A. Geis and Dr. John May, provided opinions. Dr. Geis determined that plaintiff has some postural limitations but can perform light work. Tr. 26, 77-85. Dr. May determined that plaintiff has some postural limitations but can perform sedentary work. Tr. 26, 87-94.

         II. Plaintiff's Testimony

         At the administrative hearing on January 5, 2017, plaintiff testified as follows.

         Plaintiff believes she completed ninth grade but thinks “some records came up saying that [she] maybe didn't complete the ninth grade.” Tr. 41. She does not have a General Education Diploma (“GED”) or any vocational training, but she can read and write and do simple math. Tr. 41-42, 68. Plaintiff is not married, and her 17-year-old adopted nephew and 18-year-old daughter live with her. Tr. 42. She can drive but experiences pain in her lower back and sometimes in her leg if she drives for longer than 30 minutes. Id. Plaintiff used to smoke a pack of cigarettes per day but now only smokes ten or fewer cigarettes per day. Tr. 43.

         For the 15 years prior to the alleged onset date, plaintiff worked as a mail machine operator. Tr. 43. In this capacity, she prepared material for mailing and loaded it into a machine. This job required her to stand on a concrete floor and lift anywhere from 40 to 50 pounds. Tr. 44. Plaintiff was between jobs for fewer than two months during this 15-year period and her employers provided health insurance. Tr. 44-45.

         In 2009, plaintiff was diagnosed with ankylosing spondylitis, which causes inflammation in her back and “issues beginning all the way from [her] neck, upper back, lower back, shoulders, hips, legs causing sciatica and, stuff like that.” Tr. 47-48. She also has “issues with [her] heels and ankles, ” inflammation in her joints and tendons, and swelling in her knees. Tr. 48. Plaintiff has chronic ear infections and fibromyalgia, which primarily affects her upper body. Tr. 51, 68. Periodic steroid injections provide her with short-term pain relief that lasts between one and three months. Tr. 49. From 2009 to until she lost employer-provided health insurance in 2014, plaintiff received three injections per year, which is the maximum. Tr. 61. She also takes heavier pain medication such as oxycodone and hydrocodone. When she takes the heavier pain medication, she gets sleepy and has difficulty focusing. Plaintiff takes a muscle relaxer and pain medication before she goes to bed. Tr. 62. Because of her pain and stiffness, she has low sleep quality and wakes up every two hours. Tr. 63. On a good night, plaintiff obtains about four hours of sleep. Tr. 63. More often than not, she takes a two-hour nap during the day. Tr. 63.

         In the beginning of 2014, plaintiff experienced a panic attack due to the stress of her health issues. Tr. 49-50. She now has panic attacks about once per month. Plaintiff also engages in obsessive compulsive behaviors and experiences depression. Tr. 65. Her depression is most severe when she has “flare ups” that intensify her pain such that she “literally can't do anything.” Tr. 65. On average, plaintiff has flare ups once per month. Tr. 66. She also takes medication for anxiety and a panic disorder. Tr. 51, 53.

         Through a combination of pain medication, steroid injections and leave under the Family And Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, plaintiff maintained employment until 2014. Tr. 45. In 2014, however, plaintiff's employer terminated her employment because she made “production mistakes.” Tr. 46. She attributes some of these mistakes to her medication. Tr. 47.

         Plaintiff testified that she cannot sit comfortably for more than about 30 minutes. Tr. 54. She cannot stand for more than about 30 minutes and she cannot actively walk for more than about 30 minutes. Tr. 55. Plaintiff sometimes uses a cane or walker. Tr. 55. She can carry about as much weight “as the average person [her] size, ” but carrying weight aggravates her condition. Tr. 56. Plaintiff reclines on a loveseat about 99 per cent of the time and her children help her with household chores. Tr. 58. She cannot wash the dishes, but she does cook and do laundry. Tr. 58-60. Plaintiff ...

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