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Albery v. Colvin

United States District Court, D. Arizona

March 12, 2014

Rick Lee Albery, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.


BRIDGET S. BADE, Magistrate Judge.

Plaintiff Rick Lee Albery seeks judicial review of the final decision of the Commissioner of Social Security (the Commissioner), denying his application for disability insurance benefits under the Social Security Act (the Act). The parties have consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and have filed briefs in accordance with Local Rule of Civil Procedure 16.1.[1] For the following reasons, the Court reverses the Commissioner's decision and remands for an award of benefits.

I. Procedural Background

In September and October 2009, Plaintiff applied for disability insurance benefits and supplemental security income under Titles II and XVI of the Act based on disability beginning August 2009. (Tr. 14.)[2] After the Social Security Administration (SSA), denied Plaintiff's initial application and his request for reconsideration, he requested a hearing before an administrative law judge (ALJ).[3] After conducting a hearing, the ALJ issued a decision finding Plaintiff not disabled under the Act. (Tr. 14-29.) This decision became the final decision of the Commissioner when the Social Security Administration Appeals Council denied Plaintiff's request for review. (Tr. 1-5); see 20 C.F.R. § 404.981 (explaining the effect of a disposition by the Appeals Council.) Plaintiff now seeks judicial review of this decision pursuant to 42 U.S.C. § 405(g).

II. Medical Record

The record before the Court establishes the following history of diagnosis and treatment related to Plaintiff's physical impairments. The record also includes an opinion from a state agency physician who reviewed the records related to Plaintiff's impairments, but who did not provide treatment.

A. Surgical Procedures in 2009

In August 2009, Plaintiff was admitted to the hospital for chest pains. (Tr. 799.) Testing revealed a left ventricular apical aneurysm with thrombus and ischemic cardiomyopathy, with a forty percent ejection fraction. (Tr. 798-99.) Plaintiff also had an eighty percent blockage of the left anterior descending coronary artery. (Tr. 260.) On August 23, 2009, Dr. Roger Hucek, M.D., performed coronary artery bypass surgery and left ventricular aneurysm repair on Plaintiff. (Tr. 262-64.) An echocardiogram the next month showed normal left ventricular systolic function (with an ejection fraction of sixty percent) and mild enlargement of the left ventricle. (Tr. 791.) However, Plaintiff's sternum was cracked during the bypass surgery and he developed an infection at the fracture site, which required hospitalization in September 2009 for a wound debridement procedure that Dr. Hucek performed. (Tr. 381, 306.) At the time of that procedure, transesophageal echocardiography revealed an ejection fraction of thirty percent (Tr. 306), and a regular echocardiogram showed left ventricular ejection fraction of fifty to fifty-five percent, but with impaired left ventricular function (filling defect). (Tr. 398.)

B. Treatment from 2010 through 2011

In March 2010, Plaintiff began treatment with Robert Bear, D.O., at Cardiovascular Consultants. Plaintiff presented with palpitations associated with shortness of breath. (Tr. 515.) Plaintiff had a decreased pulse in both legs. (Tr. 516.) Dr. Bear ordered diagnostic tests including an echocardiogram, which showed a forty percent ejection fraction. (Tr. 513.) He also ordered a nuclear stress test, which showed a thirty-six percent ejection fraction and an anteroapical myocardial infarction (heart attack) with inferior wall perfusion defect. (Tr. 514.) He also ordered ankle-brachial indices, which indicated abnormal blood flow to the left leg. (Tr. 528.) Dr. Bear noted Plaintiff's history of coronary artery disease, type II diabetes, and palpitations. (Tr. 515.) At a follow-up appointment in May 2010, Dr. Bear noted that the diagnostic tests indicated "peripheral arterial disease involving the lower left extremity, " which was consistent with Plaintiff's left leg claudication. (Tr. 551.)

In June 2010, Dr. Bear reported that Plaintiff also suffered from neuropathy in the feet, probably unrelated to the claudication symptoms. (Tr. 549.) Plaintiff also had slow blood flow to the lower extremities. (Tr. 545.) At the end of June 2010, Plaintiff started using a walker due to leg weakness. (Tr. 669.) His pulses were markedly impaired (1) in the lower extremities, and he had demonstrable weakness in both lower extremities. (Tr. 670.)

A September 2010 stress test showed findings consistent with a prior myocardial infarction and a thirty-nine percent ejection fraction. (Tr. 644-45.) When Plaintiff presented to Cardiovascular Consultants later that month, he had swelling in his feet, paroxysmal nocturnal dyspnea (shortness of breath), and occasional palpitations. (Tr. 666.) Nurse Practitioner Darlene Bidwell noted Plaintiff was using a wheelchair because he became short of breath walking short distances. ( Id. ) She also noted that Plaintiff was "NYHA Class III to IV."[4] ( Id. )

In October 2010, Plaintiff saw Thomas Perry, M.D., at Maryvale Cardiology with complaints of dyspnea, insomnia, and dizziness. (Tr. 643.) Dr. Perry noted that Plaitiff used a wheelchair because he was afraid of falling. ( Id. ) He ordered a Holter monitor for Plaintiff. (Tr. 642.) An echocardiogram that month showed decreased left ventricular function. (Tr. 641.) On November 3, 2010, Dr. Perry noted that Plaintiff complained of shortness of breath, chest pains, and dizziness. (Tr. 639.) He advised Plaintiff to continue with cardiac rehabilitation and adjusted Plaintiff's medications. ( Id. ) In January 2011, while he was at a cardiac rehabilitation appointment, Plaintiff was sent to the emergency room for chest pains and shortness of breath. (Tr. 694.) Cardiac catheterization showed diffuse ninety-five percent narrowing in the left anterior descending artery in the mid-segment. There was also moderate left ventricular systolic dysfunction. (Tr. 692.) A transesophageal echocardiogram showed there was no thrombus of the left atrium and a fifty percent ejection fraction, described as "low normal." (Tr. 688-89.)

Plaintiff returned to Cardiovascular Consultants for further treatment in 2011. (Tr. 654-56.) During a June 2011 appointment, Dr. Bear noted that Plaintiff's lower extremity pulses were moderately impaired (2), and continued his medications. (Tr. 651-53.) A transesophageal echocardiogram in July 2011 was normal, with no sign of thrombus. (Tr. 683.) Plaintiff returned to the emergency room in July 2011 because of chest pain, and testing ruled out a heart attack. (Tr. 679-82.)

From 2009 through 2011, Kevin Cleary, D.O., was Plaintiff's primary care physician. His diagnoses included coronary artery disease, non-insulin dependent diabetes mellitus, peripheral neuropathy, and anxiety (for which he prescribed Ativan and Trazadone). (Tr. 698-745.) Dr. Cleary prescribed a wheelchair because Plaintiff suffered falls. (Tr. 569, 714) Dr. Cleary also noted that Plaintiff used a walker. (Tr. 700.)

C. Functional Capacity Assessments

1. Jerry Dodson, M.D., Reviewing Physician

In February 2010, as part of the initial disability determination, Jerry Dodson, M.D., a state agency physician, completed a Physical Residual Functional Capacity (RFC) Assessment. (Tr. 493-500.) He reviewed the existing medical record regarding Plaintiff's cardiac impairment and specifically discussed the August 2000 surgery and subsequent sternum repair. (Tr. 500.) Dr. Dodson rated capacities for light work as defined in the regulations. (Tr. 494, 500.) He opined that Plaintiff could not climb ladders, ropes, or scaffolds, but could occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and crawl (Tr. 495), and could perform limited reaching and gross manipulation. (Tr. 496.) He opined that Plaintiff should avoid concentrated exposure to extreme cold or hazards such as machinery or heights. (Tr. 497.) The ALJ's RFC determination largely adopted this assessment. (Tr. 19.)

2. Dr. Bear

In May 2010, Dr. Bear completed a Cardiac Residual Functional Capacity Questionnaire (Cardiac Questionnaire). (Tr. 566-67.) Dr. Bear noted Plaintiff's diagnoses of hypertension, peripheral vascular disease, claudication, and osteomyelitis. Dr. Bear found that Plaintiff suffered from chest pain, palpitations, and shortness of breath due to these diagnosed impairments. (Tr. 566.) He opined that Plaintiff had "significant limitation of physical activity as demonstrated by fatigue, palpitations, dyspnea, or anginal discomfort." (Tr. 567.) He further opined that these symptoms would often interfere with attention and concentration. ( Id. ) In an updated Cardiac Questionnaire in October 2011, Dr. Bear listed diagnoses of coronary artery disease, status post-coronary artery bypass grafting in 2009, cardiomyopathy, and diabetes. (Tr. 817.) Plaintiff's symptoms included chest pain, fatigue, weakness, and shortness of breath. Again, Dr. Bear noted that these symptoms would often interfere with Plaintiff's attention and concentration and resulted in "significant limitation of physical activity." (Tr. 817-18.)

3. Dr. Cleary

Dr. Cleary completed a Medical Assessment of Ability to do Work Related Physical Activity assessment in October 2011. Dr. Cleary found that Plaintiff could sit for less than six hours and stand/walk less than two hours in an eight-hour day. (Tr. 748.) Dr. Cleary noted that Plaintiff experienced increased "SOB [shortness of breath] with exertion due to his CHF [congestive heart failure] and COPD [chronic obstructive pulmonary disease]." (Tr. 750.) Dr. Cleary also completed a Fatigue Residual Functional Capacity Assessment. He opined that Plaintiff needed to nap for about one hour during an eight-hour day. (Tr. 746-47.) He concluded that fatigue would often interfere with Plaintiff's attention and concentration, resulting in an inability to sustain work on a regular and continuing basis, eight hours a day, five days a week. (Tr. 746.)

III. Administrative Hearing Testimony

Plaintiff appeared and testified at the October 12, 2011 administrative hearing. Plaintiff was in his late forties at the time. He had a high school education and past relevant work as a preparation cook. (Tr. 72.) Plaintiff testified that he was limited by shortness of breath and chest pains. (Tr. 63.) He also testified that he suffered from fatigue, and that he lay down "half an hour to an hour" ...

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