WILLIAM J. MARTÍNEZ, District Judge.
This matter is before the Court on review of the Commissioner of Social Security's ("Defendant") decision to deny Plaintiff D'Anna Houseman's ("Plaintiff") application for disability insurance benefits. Plaintiff filed an Opening Brief (ECF No. 13), Defendant filed a Response (ECF No. 14), and Plaintiff filed a Reply (ECF No. 15). After reviewing the briefs and administrative record filed with the Court, Defendant's decision to deny Plaintiff's application disability insurance benefits is reversed and this matter is remanded for an immediate award of benefits.
Plaintiff was born on October 25, 1967. (Record ("R.") (ECF No. 9) at 1128.) Plaintiff's medical records indicate she has been diagnosed with fibromyalgia, migraines, degenerative joint disease, carpal tunnel syndrome, chiari malformation, and lichen planus. (Id. at 22-23; 1156.) Plaintiff alleges a disability onset date of October 30, 2006. (Id. at 870.) Plaintiff has past relevant work as a food service manager and a receptionist. (Id. at 875.)
Plaintiff initially filed an application for benefits in August 2009 (id. at 216), which was denied on July 27, 2011 by Administrative Law Judge Kathryn Burgchardt ("the ALJ"). (Id. at 28.) The Social Security Appeals Council declined to review the ALJ's July 2011 decision. (Id. at 1.) On September 13, 2012, Plaintiff appealed the ALJ's decision to this Court. (Id. at 867.) The Court vacated and remanded the ALJ's decision for multiple reasons, including the lack of substantial evidence supporting the ALJ's residual functional capacity ("RFC") finding. Houseman v. Colvin, 2013 WL 4657646, at *1 (D. Colo. Aug. 30, 2013).
In July 2013, prior to the issuance of the Court's remand order, Plaintiff filed a second application for benefits. (R. at 1128-29.) The ALJ consolidated these two cases, and, on May 20, 2014, the ALJ again found that Plaintiff was not disabled within the meaning of the Social Security Act. (Id. at 876.) The Appeals Council denied Plaintiff's request for review of the May 20, 2014 decision. (Id. at 847-48.)
In her May 20, 2014 decision, the ALJ found that Plaintiff was not under a disability, as defined in the Social Security Act, from the date of her application for benefits through the date of the decision. (Id. at 876.) The ALJ made the following findings of fact and conclusions of law in accordance with the Commissioner's five-step sequential evaluation process.
(Id. at 871.) The ALJ then ruled at step four that Plaintiff was unable to perform any past relevant work. (Id. at 875.) However, considering the RFC assessment described above, along with Plaintiff's age, education, and work experience, at step five the ALJ determined that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. (Id.) Those jobs include companion, cashier, and assembler. (Id. at 876.)
On December 11, 2014, Plaintiff initiated this action challenging the ALJ's May 20, 2014 denial of benefits, which is now before the Court. (ECF No. 1.)
The Court reviews the Commissioner's decision to determine whether substantial evidence in the record as a whole supports the factual findings and whether the correct legal standards were applied. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. "It requires more than a scintilla, but less than a preponderance." Lax, 489 F.3d at 1084. Evidence is not substantial if it is overwhelmed by other evidence in the record. Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005). In reviewing the Commissioner's decision, the Court may neither reweigh the evidence nor substitute its judgment for that of the agency. Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006). "On the other hand, if the ALJ failed to apply the correct legal test, there is a ground for reversal apart from a lack of substantial evidence." Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
Plaintiff challenges the ALJ's decision in several respects, arguing that: (1) the ALJ failed at step two to consider all medically-documented impairments and the combined effect of those impairments, which had an adverse impact on the ALJ's analysis at subsequent steps of the evaluation; (2) at step three, the ALJ failed to properly evaluate whether Plaintiff's impairments met or medically equaled the severity of the listing of impairments; (3) the ALJ's finding that Plaintiff had the RFC for a range of light work is not supported by substantial evidence; and (4) the ALJ's step five determination is not supported by substantial evidence. (ECF No. 13.) Each of these assignments of error relates, in some way, to the ALJ's treatment of Plaintiff's lichen planus condition. The Court finds that the ALJ did not properly analyze or discuss this condition along with Plaintiff's other impairments, which mandates reversal.
The Court's August 30, 2013 Order that reversed the ALJ's July 27, 2011 decision and remanded the matter for further proceedings was based almost entirely on the ALJ's analysis of Plaintiff's lichen planus condition. Houseman, 2013 WL 4657646, at *4. In her July 2011 decision, the ALJ found Plaintiff's lichen planus was not a severe condition:
(R. at 23 (citations omitted).) The Court disagreed, and found that the ALJ's conclusion was "overwhelmed by evidence of treating physicians who proffer evidence to the contrary." Houseman, 2013 WL 4657646, at *4. The Court also specifically rejected Defendant's contention that because Plaintiff had endured lichen planus for two decades, this justified the ALJ's finding that the condition was not severe. Id. at n.6. To the contrary, the Court noted that Plaintiff's condition was "worsening" as recently as February 2011. Id. The Court further stated that "[a]ny notion that Plaintiff did not show that she was limited by lichen planus is absurd." Id. at n.7. The Court directed the ALJ to review all the medical reports in greater detail on remand, and noted that "the ALJ well may need to obtain further medical evidence on Plaintiff's condition so that the record can be properly developed before a final ALJ decision is made." Id. at n.5.
In her May 20, 2014 decision following the Court's remand Order, the ALJ found that Plaintiff's lichen planus was a severe condition. (R. at 870.) However, the ALJ did not find that the lichen planus met or equaled the severity of any established listing of impairments. (Id. at 871.) The ALJ went on to reach a conclusion in the RFC portion of the analysis similar to that in her July 2011 decision:
(Id. at 874 (citations omitted).)
Plaintiff objects to the ALJ's characterization of her lichen planus. Plaintiff argues that she has not merely experienced "periods of flares"; rather, her lichen planus exhibits a chronic and unremitting condition. (ECF No. 13 at 34.) The Court agrees that the ALJ improperly diminished the severity of Plaintiff's lichen planus.
The ALJ's decision puts a good deal of stock in a single report from Sylvia Brice, M.D. dated August 11, 2010. (R. at 693.) In her August 11, 2010 notes, Dr. Brice states that she placed Plaintiff on Griseofulvin medication on March 31, 2010. (Id.) Dr. Brice reports that Plaintiff "feels that Griseofulvin is very helpful, and is controlling her lesions well. If she misses a dose, she notices she gets flares." (Id.)
Dr. Brice's report does not at all reflect the subsequent increasing severity of Plaintiff's condition, and the pain it entails, as documented by the medical records that follow this visit:
This treatment history is uncontradicted and the record contains no substantive evidence, apart from Dr. Brice's single August 11, 2010 report, that Plaintiff's symptoms were ever truly under control. Consequently, the Court finds that Plaintiff's treatment history in no way exhibits "periods of flares." (Id. at 874.) While gaps in Plaintiff's treatment may exist, the medical history above summarizes three years of near-constant pain, multiple medical procedures, and treatment—without any apparent improvement whatsoever. Indeed, as the Court stated in its August 30, 2013 Order, Plaintiff's condition appears to be worsening. Plaintiff's description of her experience living with this condition is heart-rending:
(Id. at 57-58.) On June 1, 2011, the ALJ conducted a second hearing at which Plaintiff further testified:
(Id. at 77-78.) Plaintiff testified a third time on March 4, 2014 following the Court's remand Order. (Id. at 946.) Plaintiff testified that her lichen planus "closes the urethra shut" and has "to sit on the toilet sometimes 15 minutes just to empty" her bladder. (Id. at 947.) Plaintiff also testified that the "heavy bleeding" started in 2006 (the year of her disability onset) that began affecting her ability to work. (Id. at 955.) The Court finds Plaintiff's lichen planus treatment history, and her testimony regarding its impact on her personal life, to be nothing short of shocking. The Court also finds that Plaintiff's testimony is entirely consistent with her medical records.
The ALJ's contention that it "is not clear" that Plaintiff has been consistent with her prescribed course of treatment is likewise contradicted by the great weight of the evidence in the record. (Id. at 874.) The ALJ notes that in June 2012, Plaintiff reported to Dr. Clauss that she had been using Clobetasol cream "a few times a month," but when questioned further, Plaintiff stated she had been using it daily to no avail. (Id. at 1458-59.) What the ALJ omits, however, is that Plaintiff also stated that she "couldn't use it very often because it hurts so bad." (Id. at 1459.) This statement is supported by the numerous medical reports stating the skin in Plaintiff's genital area was extremely fragile, and would often crack or bleed on contact. Other record evidence suggests that Plaintiff's various treatment regimens, including Clobetasol, did little to alleviate her condition. Dr. Chesney reported in November 2013 that Plaintiff had been prescribed Clobetasol, "but soon found this irritating and ineffective." (Id. at 1452.) Plaintiff's medical records also support her testimony that certain medications are rendered ineffective over time. Dr. Thompson reported in October 2012, "Pt not improving on daily Temovate cream," and Dr. Leomine wrote in July 2013 that Plaintiff exhibited "worsening symptoms on current regimen" prescribed in 2011 to which she was "no longer responding." (Id. at 1447, 1476.) The Court thus finds that the one treatment note cited by the ALJ does not supply substantial evidence of Plaintiff's noncompliance with any prescribed course of treatment.
Given the ALJ's failure to properly address the severity of Plaintiff's impairments, the Court must determine whether this matter should be remanded for further findings, or reversed for an immediate award of benefits. "Outright reversal and remand for immediate award of benefits is appropriate when additional fact finding would serve no useful purpose." Sorenson v. Bowen, 888 F.2d 706, 713 (10th Cir. 1989). To make this finding, the Court must be satisfied that Plaintiff is disabled as a matter of law and is entitled to the benefits for which she applied. Id. As described below, two independent bases exist for an award of benefits: Plaintiff's condition meets or medically equals one of the established listings of impairments, and the ALJ's decision was not based on substantial evidence.
With regard to the listing of impairments, the analysis of a claim at step three of the evaluation process requires consideration of whether a claimant has an impairment that meets or equals any listing found at 20 C.F.R., Pt. 404, Subpt. P, App'x 1. If a claimant has such an impairment, she is deemed disabled and no further analysis is required. See 20 C.F.R. § 404.1520(a)(4)(iii); (d). A claimant's impairment "meets" a listing if such impairment matches all of the specified criteria in one of the listings. Id. § 404.1525(c)(3). However, under step three, a finding of disability is also required if a claimant's impairment, or combination of impairments, "equals" a Listing. Id. § 404.1526(a). An impairment "equals" a Listing where it is "at least equal in severity and duration to the criteria of any listed impairment." Id. Plaintiff "has the burden at step three of demonstrating, through medical evidence, that his impairments meet all of the specified medical criteria contained in a particular listing." Riddle v. Halter, 10 F. App'x 665, 667 (10th Cir. 2001) (emphasis in original).
Plaintiff argues that her lichen planus falls under Social Security listing 8.00 (Skin Disorders), specifically listing 8.05. (ECF No. 13 at 14.) Listing 8.05 covers: "Dermatitis (for example, psoriasis, dyshidrosis, atopic dermatitis, exfoliative dermatitis, allergic contact dermatitis), with extensive skin lesions that persist for at least 3 months despite continuing treatment as prescribed." 20 C.F.R., Pt. 404, Subpt. P, App'x 1, § 8.05.
The preamble to listing 8.00 explains how dermatitis and "chronic infections of the skin or mucous membranes" are evaluated. Id. § 8.00(A). For example, "extensive skin lesions," as referenced in listing 8.05, are those that involve "critical body areas, and result in a very serious limitation," including "[s]kin lesions on . . . the perineum, or both inguinal areas that very seriously limit your ability to ambulate."
The ALJ found that, "As to listing 8.05, the evidence does not show that the claimant's lichens planus results in a very serious limitation as defined in 8.00C. The undersigned gives little weight to the questionnaires filled out by Dallas Thompson, D.O., Sylvia Brice, M.D., and Tyler Muffly, M.D." (R. at 871.) In the questionnaires, Drs. Thompson, Brice, and Muffly each opined that Plaintiff's condition met or equaled listing 8.05. (Id. at 1541, 1686, 1691). Each physician reached this conclusion based on his or her physical examination of Plaintiff and accompanying medical records. (Id.) The ALJ nonetheless found these opinions were conclusory and unsupported by treatment notes, and were thus entitled to "little weight." (Id. at 871.)
The ALJ further discounted the opinion of Plaintiff's treating physician, Mark Warwick, M.D. Dr. Warwick opined that Plaintiff could not walk a full block "without rest or severe pain," could sit for only fifteen minutes, and could stand for zero minutes "before needing to sit down, walk around, etc." (Id. at 548.) The ALJ found this opinion to be inconsistent with the records of Theodore Stringer, M.D. who on November 3, 2009, following Plaintiff's right knee replacement, stated Plaintiff had "full extension, good alignment and stability," and did "very favorably without ambulatory assist and with minimal right sided antalgia." (Id. at 457.) Likewise, the ALJ stated Plaintiff's left knee replacement was "uneventful." (Id. at 873.) The ALJ found this evidence reason to assign Dr. Warwick's opinion "little weight," particularly since he had discontinued his treatment of Plaintiff in 2010. (Id. at 874.)
Finally, the ALJ found that Plaintiff's fibromyalgia and musculoskeletal impairments did not seriously impact her physical condition including her ability to walk. (Id. at 872-73.) The ALJ acknowledged that fibromyalgia "cannot be established through diagnostic testing," but discounted Plaintiff's fibromyalgia because the American College of Rheumatology guidelines specify that the pain must be widespread in all four quadrants of the body and "at least 11 of 18 specified tender points on the body." (Id. at 872.) Because Plaintiff had five trigger points during a consultative examination in 2010 with Timothy R. Hudson, M.D., the ALJ imposed only "environmental and other restrictions" to compensate for the limited impact of Plaintiff's fibromyalgia. (Id.)
The Court concludes that the ALJ's findings are overwhelmed by the remaining record evidence, and that the ALJ failed to comply with the Court's remand Order. The ALJ's decision was thus not based on substantial evidence given her erroneous treatment of Plaintiff's lichen planus and musculoskeletal impairments.
The ALJ chose to give little weight to Dr. Warwick's opinion, claiming in part that Dr. Warwick had a "sporadic treatment relationship with" Plaintiff. This statement defies credulity, given the fact that Dr. Warwick treated Plaintiff close to fifty times between July 2007 and November 2010. (Id. at 510-25, 560, 689-91, 797-98.) Moreover, Dr. Warwick continued to treat Plaintiff for nearly a year after Dr. Stringer last examined her. (Id. at 602.) Treatment notes from Peak Vista Community Health Centers after this time further support Plaintiff's claims of constant pain throughout her body, specifically associated with movement including walking. For example, on April 20, 2011, Plaintiff was examined by Brenda Walker-Conner, M.D. for back pain: "Onset: 1 week ago. Severity level is 9. . . . The problem is worsening. It occurs persistently. Location of pain was the middle back. Pain has radiated to the back . . . piercing, sharp and stabbing. Context: walking." (Id. at 815.)
This condition only appears to have worsened based on follow-up treatment notes. Plaintiff was examined by Jennifer Pharris, D.O. on July 19, 2012 for "Chronic Pain . . . concern for fibromyalgia." (Id. at 1464.) Dr. Pharris wrote: "Onset: 1 year ago. Severity level is 6. The problem is fluctuating. It occurs persistently. Location of pain was lower back. Pain has radiated to the back, left arm, right arm and both legs. . . . Symptoms are aggravated by ascending stairs, bending, changing positions, daily activities, descending stairs, standing and walking." (Id. at 1465.) Dr. Pharris made the same findings on July 29, 2013: "[B]ack pain . . . severity level is 10. The problem is worsening. It occurs persistently. . . . Symptoms are aggravated by ascending stairs, bending, changing positions, coughing, daily activities . . . sitting, sneezing, standing, twisting and walking." (Id. at 1504.)
In its prior Order, the Court expressed its concern that the ALJ had engaged in the "picking and choosing" of evidence and that, at least with regard to Plaintiff's lichen planus condition, there was an abundance of evidence in the record from treating physicians that the ALJ chose to ignore without any apparent principled reason. Houseman, 2013 WL 4657646, at *1-4. To the dismay of this Court, a similar pattern of "picking and choosing" among the evidence in the record was engaged in by the ALJ on remand, especially with regard to Plaintiff's lichens planus condition, as well as her musculoskeletal impairments.
By way of just brief example, just as Plaintiff's August 2010 statement to Dr. Brice that her medications were "very helpful and prevented flares" in no way represents the true severity of her lichen planus documented over the following years, the ALJ's citation to the one-time consultative examination by Dr. Hudson, and the handful of reports from Dr. Stringer, simply does not accurately portray Plaintiff's musculoskeletal pain. Given Dr. Warwick's opinion and the treatment records from Peak Vista cited above, the Court finds that the ALJ's findings with respect to multiple of Plaintiff's major impairments are, once again, heavily overwhelmed by the record evidence to the contrary. The Court further finds that, based on the evidence above, Plaintiff is disabled, and should be awarded benefits due to the lack of substantial evidence to support the ALJ's decision.
Alternatively, Plaintiff's lichen planus, combined with her serious musculoskeletal pain, suffices to meet or equal listing 8.05. Plaintiff's condition exhibits an extremely severe case of dermatitis with "extensive skin lesions," as defined in the relevant regulations, that has persisted for years, despite continued treatment. See 20 C.F.R., Pt. 404, Subpt. P, App'x 1, § 8.05. The Court further finds that Dr. Warwick's opinion, considered with Plaintiff's remaining medical records, indicates that Plaintiff's combined musculoskeletal impairments "very seriously limit [her] ability to ambulate." Id. § 1.00(B)(2)(b)(1)-(2). Three other treating physicians also specifically opined that Plaintiff's impairments met or medically equaled listing 8.05. (R. at 1541, 1686, 1691). Plaintiff is accordingly disabled within the meaning of the Social Security Act.
The Court has reached this conclusion after considering the record as a whole, the ALJ's decision, and the history of this case. It is abundantly clear to the Court that any additional fact finding would not serve a useful purpose here. Sorenson, 888 F.2d at 713. "The decision to direct an award of benefits should be made only when the administrative record has been fully developed and when substantial and uncontradicted evidence on the record as a whole indicates that the claimant is disabled and entitled to benefits." Moore v. Astrue, 2009 WL 215356, at *4 (D. Kan. Jan. 28, 2009). Such is the case here. The medical record in this case is voluminous and charts numerous years of Plaintiff's treatment history. These records, in the Court's view, clearly establish that Plaintiff is entitled to the benefits she seeks.
But the Court must also consider more practical concerns. One factor deemed relevant by the Tenth Circuit is the length of time the matter has been pending. Salazar v. Barnhart, 468 F.3d 615, 626 (10th Cir. 2006). Plaintiff alleges a disability onset date of October 2006, and she filed her application for disability benefits in August 2009. (R. at 20.) This matter has therefore been pending, either before the ALJ or in this Court, for over six years. The Court also already remanded this case once, in August 2013, for further consideration of the exact same condition on which the Court now bases its disability determination. Houseman, 2013 WL 4657646, at *1. "The Secretary is not entitled to adjudicate a case ad infinitum until it correctly applies the proper legal standard and gathers evidence to support its conclusion." Sisco v. U.S. Dep't of Health & Human Servs., 10 F.3d 739, 746 (10th Cir. 1993); see also Ragland v. Shalala, 992 F.2d 1056, 1060 (10th Cir. 1993) ("In light of the Secretary's patent failure to satisfy the burden of proof at step five, and the long delay that has already occurred as a result of the Secretary's erroneous disposition of the proceedings, we exercise our discretionary authority to remand for an immediate award of benefits.").
Enough is enough. The Court refuses to force Plaintiff to proceed with her case any further; she will not be required to endure yet another round of evidence gathering and another hearing on yet a further remand. There comes a time when the law, the facts, and indeed the interests of justice clearly point to but one conclusion: Ms. Houseman has met her burden under the Act, and the Social Security Administration has not.
Based on the foregoing, the Court ORDERS that Defendant's determination that Plaintiff is not disabled is REVERSED. The Court hereby further ORDERS that this matter be REMANDED to the Commissioner for an immediate award of benefits as of October 30, 2006, Plaintiff's disability onset date.
