United States District Court, D. Kansas
MARCA A. ZACHARY, Plaintiff,
ANDREW M. SAUL,[*] Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE
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
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.
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).
summarized, the record states as follows:
was born on April 29, 1976. She claims disability beginning
on January 1, 2015 because of ankylosing spondylitis,
arthritis throughout the body, sacroiliitis, fibromyalgia,
osteoarthritis lumbar radiculopathy, constant backaches and
high blood pressure. Tr. 207.
is approximately 6 feet tall. She weighed 326 pounds on July
1, 2014 and 420 pounds on January 5, 2017.
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.
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.
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.” On January 3 and
January 17, 2014, Dr. Sayed performed two diagnostic medial
branch block procedures on plaintiff. Tr. 24.
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.
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.
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.
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.
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.
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.
administrative hearing on January 5, 2017, plaintiff
testified as follows.
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.
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.
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.
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.
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.
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.