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Gill v. Colvin

United States District Court, D. Arizona

May 15, 2014

Todd Gill, Plaintiff,
Carolyn W. Colvin, Defendant.


BRIDGET S. BADE, Magistrate Judge.

Todd Gill (Plaintiff) 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. For the following reasons, the Court reverses the Commissioner's decision and remands for further proceedings.

I. Procedural Background

On March 23, 2010, Plaintiff applied for disability insurance benefits and supplemental security income under Titles II and XVI of the Act. (Tr. 12.)[1] Plaintiff alleged that he had been disabled since October 1, 2009. ( Id. ) Plaintiff later amended the alleged disability onset date to April 14, 2010. (Tr. 295.) 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). After conducting a hearing, the ALJ issued a decision finding Plaintiff not disabled under the Act. (Tr. 12-24.) This decision became the final decision of the Commissioner when the Social Security Administration Appeals Council denied Plaintiff's request for review. (Tr. 1-4); 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 health. The record also includes opinions from State Agency Physicians who examined Plaintiff or reviewed the records related to his health, but who did not provide treatment.

A. Medical Treatment

Before the April 2010 amended disability onset date, Plaintiff saw Afeworki Kidane, M.D., for diabetes, back pain, anxiety, and medication refills. (Tr. 316-25, 456-58.) Dr. Kidane diagnosed Plaintiff with back pain, high blood pressure, diabetes, obesity, voice hoarseness, and noted generalized anxiety disorder. (Tr. 336, 402, 405, 408, 411, 414, 417, 419, 423, 432, 435, 438, 441, 444, 447, 450.) Plaintiff saw Dr. Kidane periodically during 2010 and 2011 with the same complaints (but mainly back pain), and for medication refills. (Tr. 384-455 (Dr. Kidane's treatment records from June 2010 to November 2011).) Dr. Kidane reported that examinations typically showed a "limited active ROM (range of motion), " full strength in Plaintiff's legs, and intact reflexes and sensation. (Tr. 384-455.) A December 2010 x-ray of Plaintiff's back showed "minimal degenerative changes of the lower lumbar spine." (Tr. 371.) A February 2012 x-ray of his back showed the same findings. (Tr. 562.)

In October 2010, as part of a term of probation, Plaintiff started mandatory substance abuse treatment at Lifewell Behavioral Wellness. (Tr. 492.) In an initial self-report, Plaintiff stated that he could do all activities of daily living (Tr. 342), that he wanted "to get back to dealing antiques" (Tr. 345), and that he wanted to "either get social security or start a business." (Tr. 352.) A mental status examination showed that Plaintiff was talkative, slightly sluggish and anxious, displayed appropriate thought content, was optimistic, oriented times four (person, place, time, situation), able to recall three objects immediately and after three minutes, had limited judgment and impulse control, and displayed poor insight. (Tr. 357-58.) Therapists diagnosed Plaintiff with opioid dependence. (Tr. 359-60.) Plaintiff participated in approximately ten group therapy sessions for his substance abuse between November 2010 and February 2011. (Tr. 493-548.) Plaintiff missed many scheduled therapy sessions. (Tr. 493, 496, 499, 502, 503, 504, 508, 513, 516, 517-21, 534, 542, 543-48.) In April 2011, therapists closed Plaintiff's case due to lack of contact. (Tr. 492.) Plaintiff also received treatment for physical and mental complaints at Correctional Health Services while incarcerated in the Arizona Department of Corrections. (Tr. 302-13, 550-61, 563-70.)

B. Medical Opinion evidence

In December 2010, Paul Drinkwater, M.D., performed a consultative physical examination of Plaintiff. On examination, Dr. Drinkwater noted an active range of motion in Plaintiff's lumbar spine, and no tenderness, tightness, muscle spasms or scoliosis. (Tr. 365.) He noted that Plaintiff was negative for fibromyalgia tender points. ( Id. ) Dr. Drinkwater further found that Plaintiff could tandem walk, heel walk, toe walk, stand on one leg and then the other, and get on and off the examination table without difficulty. (Tr. 364.) He also noted that Plaintiff had normal muscle tone, bulk, and strength in his lower extremities, and had a functional range of motion in his hips, knees, and ankles. (Tr. 366.)

Dr. Drinkwater noted that Plaintiff reported fibromyalgia, but there were no records documenting that diagnosis and his findings on examination were inconsistent with a fibromyalgia diagnosis. ( Id. ) Dr. Drinkwater diagnosed diabetes in "questionable control, " high blood pressure under control, and "nonspecific back problems with a slight decrease in range" of motion. ( Id. ) Dr. Drinkwater opined that Plaintiff could lift and/or carry up to twenty pounds occasionally and up to ten pounds frequently, and stand and/or walk six to eight hours in an eight-hour workday. (Tr. 367.) He also found that Plaintiff could frequently reach, handle, finger, feel, and climb ramps and stairs; occasionally stoop, kneel, and climb ladders; should never crouch, crawl, or climb ropes and scaffolds; and should avoid working around heights, chemicals, dust, fumes, and gases. (Tr. 366-67.)

Also in December 2010, Marcel Van Eerd, Psy.D., performed a psychological evaluation of Plaintiff. (Tr.392.) Plaintiff reported to Dr. Van Eerd that he watched television, managed his hygiene, shopped, paid bills, and read. (Tr. 373.) Plaintiff also reported a history of cannabis, cocaine, and opiate use and reported that he was on probation requiring drug and mental health treatment at the time of the evaluation. (Tr. 374.) Dr. Van Eerd noted that Plaintiff scored 26/30 on a mini mental status examination. He also noted that Plaintiff was skilled at social functioning, appeared manipulative at times, showed fair cooperation and adequate willingness to participate, but was also avoidant at times, displayed a worried and tearful expression, had fair organization of thought content, had poor credibility due to an exaggeration of difficulties, was hyper-vigilant, had low energy, a depressive mood, and a slow pace. (Tr. 375.)

Dr. Van Eerd diagnosed polysubstance dependence and mood disorder, and noted that Plaintiff's abilities were limited by reduced attention, concentration, motivation, and effort. (Tr. 375.) Dr. Van Eerd completed a psychological/psychiatric medical source statement opining that Plaintiff had: (1) mild limitations in understanding and remembering simple work-like instructions; (2) "moderate limitation in sustaining routines with slowed pace [and] difficulty managing supervision indicating a fair ability to make work decisions and fair management of stress"; (3) "mild limitations in interacting with others with adequate one to one behavior [and a] fair ability to manage critique and follow work rules"; and (4) "mild ...

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