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Allen v. Berryhill

United States District Court, D. Oregon

November 13, 2017

ANITA JANINE ALLEN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          STACIE F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE.

         Anita Janine Allen (“Allen”) brings this appeal challenging the Commissioner of the Social Security Administration's (“Commissioner” or “SSA”) denial of her application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-34. The Court has jurisdiction to hear this appeal pursuant to 42 U.S.C. § 405(g). For the reasons that follow, the Court reverses the Commissioner's decision and remands for an award of benefits.

         BACKGROUND

         Allen was born in September 1970, making her thirty-six years old on April 1, 2007, the alleged disability onset date. She completed two years of college coursework, and her past PAGE 1 - OPINION AND ORDER relevant work includes time as a waitress and supervisor at Shari's Restaurant. Allen alleges disability due to Ehlers-Danlos Syndrome, a “rare genetic condition typified by joint instability and chronic musculoskeletal pain, ” Wong v. Minn. Dep't of Human Servs., 820 F.3d 922, 926 (8th Cir. 2016); Gastroesophageal Reflux Disease (“GERD”); Chronic Fatigue Syndrome (“CFS”); dysautonomia, a “malfunction of the autonomic nervous system, ” Hill v. Astrue, No. 11-00582, 2012 WL 4090171, at *2 n.8 (E.D. Cal. Sept. 17, 2012); Postural Orthostatic Tachycardia Syndrome (“POTS”), a syndrome “in which the patient's heart rate increases significantly upon standing without a significant drop in blood pressure, ” Hibbard v. Sec'y of Health & Human Servs., 698 F.3d 1355, 1359 (Fed. Cir. 2012); and atypical chest pain. (Tr. 70, 83, 210.)

         On July 16, 2007, Allen visited Dr. Sig-Linda Jacobson (“Dr. Jacobson”), an obstetrician, who noted that women with Ehlers-Danlos Syndrome “are at risk of preterm labor, ” that Allen “has had [four] term deliveries, ” which meant the risk of preterm labor was “very low” and her Ehlers-Danlos Syndrome “should not cause any major problems, ” and that Allen underwent three Von Willebrand's disease panels, two of which were within normal limits and one that was normal “with the exception of . . . the Von Willebrand factor activity [being] slightly low.”[1] (Tr. 333; see also Tr. 343, confirming that Allen's more recent lab results were “consistent with her having type 1 Von Willebrand's [disease] that has been corrected during the pregnancy as expected”).

         On April 12, 2008, an x-ray of Allen's left foot showed “[n]o fracture or dislocation.” (Tr. 347.)

         On July 1, 2008, Allen underwent an x-ray of her left wrist because she had fallen, and the x-ray was negative for a wrist fracture and “[n]o bony abnormalities [were] identified.” (Tr. 408.)

         On April 12, 2009, a magnetic resonance imaging (“MRI”) of Allen's lumbar spine revealed “[m]inimal disk bulges” that were “not likely to account for [Allen's] current symptoms” of “stabbing and aching pain in [the] center of [her] low back, radiating into [the left] buttocks, ” “aching and numbness in [the left] thigh, ” and “numbness/tingling on [the] sole and tingling on [the] dorsum of [the left] foot, ” which was causing Allen to “drag[] her left leg.” (Tr. 351, 409.) An x-ray of Allen's lumbar spine also revealed “no evidence of fractures, ” “normal” alignment in the vertebral bodies, “normal” intervertebral disc spaces, and “normal” facet joints. (Tr. 408.)

         On April 21, 2010, Allen appeared for a genetics consultation with Dr. Dana Kostiner (“Dr. Kostiner”). In her treatment notes, Dr. Kostiner observed that Allen has “a personal history of multiple joint dislocations and subluxations, ” and concluded that Allen's “features do fit pretty well with the diagnosis” of the hypermobility subtype of Ehlers-Danlos Syndrome. (Tr. 373; see also Tr. 375, noting that all of Allen's “children have been diagnosed with EDS hypermobility type, and Allen's “physical exam and history [are] consistent” with such a diagnosis).

         On August 10, 2010, Allen appeared for a neurological consultation with Dr. Ruxandra Costa-Corpaciu (“Dr. Costa-Corpaciu”). Allen complained of “tension-like headache[s] with some dizziness” and a ten-year “history of low back pain and mainly left leg weakness, ” described “some numbness and tingling over the left lateral aspect of [her] thigh off and on, ” noted that “at the end of the day she has more problems ambulating with her left leg, ” and reported that she has “a history of dislocating” her left hip and “right arm, especially when vacuuming, ” and difficulty “picking up her leg” in order to use the stairs. (Tr. 382-83.) Dr. Costa-Corpaciu indicated that she “doubt[ed]” that Allen was experiencing “any possible radiculopathy or neuropathy” based on “her physical examination, ” and stated that “[u]nfortunately, for [patients with] Ehlers-Danlos [Syndrome] there is no specific treatment.” (Tr. 383-84.)

         On August 26, 2010, Allen underwent an electromyogram (“EMG”) which revealed “[n]o electrical evidence to support a radiculopathy, plexopathy, or peripheral neuropathy.” (Tr. 389.)

         On November 1, 2011, Allen appeared for a pain management consultation with Dr. Kimberly Mauer (“Dr. Mauer”). Allen complained of pain in her low back, hip, and legs. (Tr. 492-494.) An MRI of Allen's lumbar spine revealed “some minimal arthritis at ¶ 5-S1, ” and Dr. Mauer “guess[ed] that this is what is contributing to the pain [that Allen] is experiencing.” (Tr. 495-97.) Dr. Mauer added that Allen suffers from Ehlers-Danlos Syndrome, and “understands that her joint mobility and laxity could definitely be contributing to her overall pain syndrome.” (Tr. 497.)

         In a treatment note dated November 29, 2011, Dr. Mauer stated that Allen “suffers from low back pain primarily on the left in the lower outer quadrant of the left buttocks region, ” Allen's “imaging is significant for some mild L5-S1 facet arthropathy bilaterally and some femoral acetabular impingement . . . bilaterally, ” Allen “suffers from Ehlers-Danlos Syndrome, which could also be contributing to laxity of multiple ligamentous areas in the lumbar spine, ” and the primary “hindrance to [Allen's] treatment is that she is very limited financially as well as time.” (Tr. 467.)

         On December 18, 2012, Dr. Joshua Boyd (“Dr. Boyd”), a non-examining state agency psychologist, completed a psychiatric review technique assessment. (Tr. 76.) Based on his review of the record, Dr. Boyd concluded that the limitations imposed by Allen's mental impairments failed to satisfy listings 12.04 (affective disorders) and 12.06 (anxiety-related disorders).

         On December 10, 2012, Dr. Mollie Thompson (“Dr. Thompson”), a rheumatologist, ordered images of Allen's pelvis and sacroiliac joints based on complaints of back and hip pain. Dr. Thompson concluded that the images were “[n]ormal, ” with “no bony abnormalities, ” joint spaces that were “maintained, ” “minimal [signs] of any sclerosis or osteophytosis at the hip joints, ” and sacroiliac joints there were “normal without erosions, pseudowidening, or sclerosis.” (Tr. 565.)

         On December 19, 2012, Dr. Martin Kehrli (“Dr. Kehrli”), a non-examining state agency physician, completed a physical residual functional capacity assessment. (Tr. 77-79.) Dr. Kehrli concluded that Allen can lift and carry twenty pounds occasionally and ten pounds frequently; stand, sit, or walk up to six hours during an eight-hour workday; push or pull in accordance with her lifting and carrying restrictions; frequently stoop, kneel, crouch, crawl, and climb ramps and stairs; occasionally climb ladders, ropes, or scaffolds; and balance without limitation. Dr. Kehrli also concluded that Allen does not suffer from any manipulative, visual, or communicative limitations, but she does need to avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation.

         On April 2, 2013, Dr. Emilia Arden (“Dr. Arden”), a cardiologist, administered a tilt table test, and diagnosed Allen with “[a]utonomic dysfunction with [POTS] and neurocardiogenic syncope.” (Tr. 576.)

         On June 7, 2013, Dr. Kordell Kennemer (“Dr. Kennemer”), a non-examining state agency psychologist, completed a psychiatric review technique assessment, agreeing with Dr. Boyd's finding that Allen's mental impairments fail to satisfy listings 12.04 and 12.06. (Tr. 90-91.)

         On June 10, 2013, Dr. Linda Jensen (“Dr. Jensen”), a non-examining state agency physician, issued a physical residual functional capacity assessment, wherein she agreed with Dr. Kehrli's conclusion that Allen can lift and carry twenty pounds occasionally and ten pounds frequently; stand, sit, or walk up to six hours during an eight-hour workday; push or pull in accordance with her lifting and carrying restrictions; frequently kneel, crawl, and climb ramps and stairs; occasionally climb ladders, ropes, or scaffolds; and balance without limitation. (Tr. 92-94.) Dr. Jensen also agreed with Dr. Kehrli's finding that Allen does not suffer from any manipulative, visual, or communicative limitations, but she does need to avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation. Unlike Dr. Kehrli, however, Dr. Jensen found that Allen could only stoop or crouch on an occasional, as opposed to frequent, basis.

         On August 26, 2013, Allen was seen by Dr. Osvaldo Schirripa (“Dr. Schirripa”) at the Central Oregon Clinical Genetics Center. Based on a clinical interview, review of Allen's past imaging and test results, and administration of tests used to assess joint laxity and hypermobility, Dr. Schirripa's findings “confirm[ed] the diagnosis” of “Ehlers-Danlos syndrome, hypermobility type.” (Tr. 699.) Dr. Schirripa also “recommend[ed] genetic testing of [Allen's] whole exome sequence, ” given her “complex multi-system medical conditions and extensive evaluations by numerous medical specialists without resolution as to the cause of some of her problems.” (Tr. 699.)

         On September 12, 2014, Allen underwent an MRI that showed “no cervical spine abnormality.” (Tr. 613.)

         On October 8, 2014, Dr. Swati Kakodkar (“Dr. Kakodkar”), who had treated Allen for approximately two years, filled out a questionnaire at the request of Allen's counsel. In that questionnaire, Dr. Kakodkar stated that Allen suffers from Ehlers-Danlos Syndrome, Von Willebrand's disease, “[f]oot drop and chronic knee issues, ” “[m]ast cell disorders leading to chronic allegories, ” and “[d]ysautonomia/POTS, ” and as a result of those medical conditions, it is “medically probable” that Allen would “miss [two] or more days from work per month on an unpredictable basis, ” “be limited to lifting and carrying [ten] pounds or less, ” “be required to take breaks and rest at unpredictable times during an average working day, ” and be “unable to work.” (Tr. 589-90; see also Tr. 578, establishing care on October 19, 2012). Dr. Kakodkar added that Allen's conditions “make[] it very difficult for her to work/engage in any activity.” (Tr. 590.)

         Allen's cardiologist, Dr. Arden, rheumatologist, Dr. Howard Gandler (“Dr. Gandler”), and allergist and immunologist, Dr. Kursteen Salter-Price (“Dr. Salter-Price”), also filled out questionnaires in October 2014, and opined that, as a result of Allen's conditions, it is “medically probable” that she would “miss [two] or more days from work per month on an unpredictable basis, ” “be limited to lifting and carrying [ten] pounds or less, ” “be required to take breaks and rest at unpredictable times during an average working day, ” and be “unable to work.” (Tr. 591-94, 597-98.)

         On March 19, 2015, Allen appeared and testified at a hearing before an Administrative Law Judge (“ALJ”). (Tr. 34-68.) Allen testified that she lives with her husband, mother, and five kids, she worked as a waitress and supervisor at Shari's Restaurant until 2007, and she stopped working because she could not “get the [reduced] hours that [she] needed for [her] health, ” she “had multiple falls and injuries, ” and she would at times need to “retreat to the office” due to the smell of cologne or perfume in the restaurant. (Tr. 35-37, 61.) Allen also testified that one of her children was home schooled from 2012 through 2015, and Allen or her mother would serve as “the learning coach, ” which entailed “lay[ing] out what . . . needed to [be done] each day, ” “answer[ing] questions, ” and making sure that Allen's daughter “logged onto the computer on time, ” “had somebody to read to, ” and “scanned in documents that she had worked on.” (Tr. 42-43, 50.) Allen added that her mother moved into the family residence shortly before Christmas 2012 and in the “same month” they “started the home school program, ” because Allen had difficulty sleeping and “often slept during the day, ” “could no longer even get the other kids up for school and out the door and start her [daughter's] school day at home, ” could not “get downstairs” at times, had difficulty bathing, could not “attend school functions anymore” or “church full-time, ” and stopped “doing [her] own chores, ” with the exception of folding laundry on her bed, shopping with an assistant to “help carry everything, ” and preparing simple meals. (Tr. 42-59.)

         The ALJ posed hypothetical questions to a Vocational Expert (“VE”) who testified at Allen's hearing. First, the ALJ asked the VE to assume that a hypothetical worker of Allen's age, education, and work experience could perform sedentary work that (1) involves frequent handling bilaterally and occasional stooping, balancing, kneeling, crouching, crawling, and climbing of ramps and stairs, and (2) does not involve climbing ladders, ropes, or scaffolds, or concentrated exposure to pulmonary irritants and workplace hazards. (Tr. 64.) The VE testified that the hypothetical worker could not perform Allen's past relevant work as a waitress/server and waitress/supervisor, but she could be employed in “assembly jobs” and “packaging and handling jobs.” (Tr. 65.) Responding to the ALJ's remaining hypothetical questions, the VE testified that the hypothetical worker could still perform the jobs described above if she needed to be allowed “to decide which portion of the day [she would] be sitting and which portion [she would] be standing, ” but the hypothetical worker could not sustain competitive employment if she was “absent from work two to three times per month on an ongoing basis” due to her impairments, or would need to take three “extra breaks during the workday” that “would last for [fifteen] minutes each” and “would be in addition to standard breaks offered to all employees.” (Tr. 65-66.)

         In a written decision issued on April 9, 2015, the ALJ applied the five-step evaluation process set forth in 20 C.F.R. § 404.1520(a)(4), and determined that Allen was not disabled. See infra. The Social Security Administration Appeals Council denied Allen's petition for review, making the ALJ's ...


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