United States District Court, D. Oregon
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 ...