Fritz v. Colvin

Beth M. Fritz, Plaintiff/Appellant, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant/Appellee.

Civil Action No. 15-cv-00230-JLK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

January 18, 2017

MEMORANDUM DECISION ON APPEAL

Kane, J.

Plaintiff-Appellant Beth Fritz appeals the final decision of the Acting Commissioner of Social Security ("Commissioner") denying her application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). Ms. Fritz claims she has been unable to work since April 2009, due to severe arthritis in her back with bone spurs, bipolar mood disorder, cognitive disorder, anxiety, chronic obstructive pulmonary disease, and leg and foot pain. Her impairments resulted in her being homeless for several years, and it is only through the financial support of her Uncle, John Staunton who is himself receiving disability benefits, that Ms. Fritz has a place to live and has been able to pursue some treatment for her conditions. The Commissioner initially denied her application in 2011, and since then, Ms. Fritz has endured an additional five years of litigation regarding her claim.

Ms. Fritz now challenges the ALJ's decision, arguing she erred by improperly determining Ms. Fritz's residual functional capacity (RFC) and by failing to meet the Commissioner's burden of production, and proof, that Ms. Fritz had the capacity to work inpositions that exist in significant numbers in the national economy. For the reasons stated below, I REVERSE,¹ and REMAND the case to the Commissioner for an immediate award of benefits.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff applied for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) on September 22, 2009, asserting a disability onset date of April 17, 2009, due to arthritis in her back with bone spurs, bipolar disorder, manic depression, COPD, and leg and foot pain. (R. 255.) As with the majority of all initial disability applicants, Ms. Fritz's initial claim was denied.

After an initial hearing held in February 2011, Administrative Law Judge (ALJ) William Musseman rejected Ms. Fritz's disability claim at step four of the five-step sequential evaluation.² In May of 2012, the Appeals Council remanded the case to the ALJ for a new hearing and decision. After a second hearing held in September 2012, the ALJ again denied Ms. Fritz's disability claim at step five. In February 2013, the Appeals Council denied review of Ms. Fritz's claim, and thus the ALJ's second decision became the final decision subject to judicial review. In May 2013, Ms. Fritz sought review by this Court, but before briefing was complete the Commissioner moved for a Sentence 4 remand back to the agency, which motion wasgranted. After a third hearing in May 2013 before a new ALJ, Kathryn D. Burgchardt, Ms. Fritz's disability claim was again denied at step five.

Ms. Fritz's Personal History

Ms. Fritz is a 53 year-old woman living in Colorado Springs, Colorado. In 2006, homeless and alone, she moved from Reno, Nevada to Colorado Springs to live with her uncle, and she has not been employed since. (R. 255, 466.) Ms. Fritz reports that her stepfather began sexually and physically abusing her at age six. (R. 366.) The lower back injury that forms part of her claimed disability was the result of her stepfather assaulting her and stomping on her back after knocking her down when she was fifteen. (Id.) She was first diagnosed with "manic depression" in 1996, COPD in 2008, and lumbar arthritis in 2008. (R. 368, Def.'s Br. 3). Ms. Fritz's family has an extensive history of bipolar disorder and alcohol abuse. (R. 292.) She started drinking alcohol at the age of fourteen, used marijuana from age seventeen to twenty, illicit prescription drugs from age thirty-three to forty, and various streets drugs, including heroin, from age forty-one to forty-three. (R. 368.) Ms. Fritz last used heroin in July 2006 and has received methadone treatment since then. (See e.g. R. 368, 657-58.) Since 2008, Ms. Fritz has received treatment from at least six mental and three physical health providers, she has received two physical and three psychological consultative examinations, and one state agency psychology consultant reviewed her medical records. In this time, Ms. Fritz has received treatment for myriad symptoms and diagnosed impairments, including mood disorder, poly-substance dependence, chronic back pain, foot and leg pain, COPD, anxiety disorder, cervical stenosis with thoracic outlet syndrome, panic disorder with agoraphobia, trichotillomania, depression, chronic constipation, and Raynaud's disease.

The Tortuous Path of Ms. Fritz's Disability Claim

Ms. Fritz's original DIS and SSI claims were premised on allegations of disability beginning in April 2009 due to arthritis in her back with bone spurs, bipolar disorder, manic depression, COPD, and leg and foot pain. (R. 255.) The SSA Regional Commissioner denied her applications in 2010, and then they were denied by an ALJ in 2011. (R. 116-19, 95-104). In May 2012, the Appeals Council remanded the case to the ALJ for a new hearing and decision. (R. 110-12)(finding the ALJ had failed to consider medical evidence showing Ms. Fritz may have a mental impairment; did not explain why limitations on Ms. Fritz's use of her right shoulder were not included in her residual functional capacity (RFC) assessment; and included a job class that was never mentioned by the vocational expert in his decision that exceeded Ms. Fritz's stated RFC). In September 2012, the ALJ held a second hearing, again finding Ms. Fritz was not disabled. (R. 35-59; R. 9-20). This decision became final when the Appeals Council denied review. (R. 1-4).

In May 2013, Ms. Fritz sought judicial review by this Court. (R. 519-20). The Commissioner voluntarily moved to remand the case for further administrative proceedings, stating the Appeals Council "would direct the ALJ to further evaluate the medical opinions of record—including the opinions of Dr. Wanstrath and Dr. Benson regarding social limitations—and provide legally valid reasons for discounting any opinion or portion of an opinion that is not adopted." (R. 526.) In addition, Fritz's RFC would be reassessed and additional vocational expert testimony obtained if necessary. (Id.) In light of this motion, I reversed the Commissioner's prior decision, and remanded the case to the Commissioner for further administrative proceedings consistent with the Commissioner's motion. (R. 522-23.) On remand, a new ALJ held a hearing in August 2014, and this ALJ found Ms. Fritz not disabled from heralleged onset of disability through the date of the decision, November 6, 2014. (R. 436-50.) This third ALJ decision became the final decision of the Commissioner and is the one before me now for review. Jurisdiction exists under 42 U.S.C. § 405(g).

Ms. Fritz's Medical and Treatment History

Before filing her application, Ms. Fritz was treated at Peak Vista Community Health Centers (Peak Vista) from April 2007 to July 2008. (R. 341-65.) On April 7, 2008, Kipton G. Freer, D.O., diagnosed Fritz with mood disorder, poly-substance dependence in remission, and chronic back pain and spinal problems, and assigned her a Global Assessment of Functioning (GAF) score of 50-55.³ (R. 356.) During this visit, Ms. Fritz reported her prescribed Lithium medication as being "too sedating" and the prescribed dosage put her to sleep. (Id.) Dr. Freer, a psychiatrist, reported that Ms. Fritz struggled to provide a coherent mood and sleep history, and he recommended continuing to monitor her depressive and anxious symptoms. (Id.) Dr. Freer noted that prior drug abuse can make the diagnosis of bipolar disorder difficult, as symptoms of the disorder are hard to differentiate from the effect of abused substances. (Id.) On April 21, 2008, Dr. Freer conducted a follow-up consultation with Ms. Fritz. (R. 355.) During this visit, Dr. Freer performed a mental status exam on Ms. Fritz, finding that her mood was "sad," affect was "constricted," behavior "excessive," thought processing was "tangential and circumferential," thought content was not "overt delusion and [she] denied recent or current [suicidal thoughts], and her speech was not "pressure[d]." (Id.) Dr. Freer assigned Ms. Fritz a GAF score of 55-60. (Id.) He recommended that she discontinue taking Lithium, prescribed her Zoloft to treat her "multiple symptoms of depressed mood," continue therapy, and schedule follow-up consultations. (Id.). On July 16, 2008, Karen Campbell, D.O, treated Ms. Fritz. (R.344-47.) During this consultation, Ms. Fritz reported that she did not like the Zoloft medication, as it made her feel manic and on "speed." (R. 344.) Dr. Campbell noted that she consulted with Dr. Freer, who is reported to have doubted Ms. Fritz's diagnosis of bipolar disorder. (R. 346.) Dr. Campbell recommended Ms. Fritz have additional laboratory work performed, and seek follow-up treatment from another mental health provider, Dr. Kron, who specializes in the treatment of patients with histories of substance addiction. (Id., 342). Dr. Campbell also resumed Ms. Fritz's prescription for Lithium and discontinued her treatment with Zoloft. (R. 347.) In the Clinical Summary for Peak Vista, Dr. Campbell retained the diagnosis of depression and bipolar disorder after her July 16 encounter with Ms. Fritz. (R. 342.)

Pursuant to Ms. Fritz's attempt to receive vocational services from the Colorado Department of Human Services' Division of Vocational Rehabilitation, her vocational counselor, Andrew Winters, directed she receive psychological and physical consultative examinations. (R. 313, 333-34.) David Benson, Ph.D., and Teresa Anderson, M.A, performed the psychological examination on October 14, 2008. (R. 313-25.) These professional evaluators compiled a report that provides Ms. Fritz's detailed medical and psychological history, and then proceeded to delineate the results of a wide-range of...