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Farringer v. Colvin

United States District Court, D. Nebraska

September 17, 2013

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant

For Ashley Farringer, Plaintiff: Sean D. Cuddigan, Timothy J. Cuddigan, LEAD ATTORNEYS, CUDDIGAN LAW, Omaha, NE.

For Carolyn W. Colvin, Acting Commissioner of the Social Security Administration, Defendant: Robert L. Homan, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE - OMAHA, Omaha, NE.

For Office of General Counsel Social Security Administration, Interested Party: Office of General Counsel Social Security Administ, LEAD ATTORNEY, SOCIAL SECURITY ADMINISTRATION - KANSAS CITY, Kansas City, MO.

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John M. Gerrard, United States District Judge.

This matter is before the Court on the denial, initially and upon reconsideration, of plaintiff Ashley Farringer's disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. The Court has considered the parties' filings and the administrative record, and reverses the Commissioner's decision to deny benefits. The Court will remand this case to the Commissioner for calculation and award of benefits.


Farringer applied for disability insurance benefits in January 2011, alleging disability beginning on August 25, 2010. T134-35. Farringer's claims were denied initially and on reconsideration. T71-74, 79-82. Following a hearing, the administrative law judge (ALJ) found that Farringer was not disabled as defined under 42 U.S.C. § § 416(i) or 423(d), and therefore not entitled to disability benefits.

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The ALJ determined that although Farringer suffered from several severe impairments, and could no longer perform her past relevant work, she had the residual functional capacity to perform other jobs that exist in significant numbers in the national economy. T6-21. The Appeals Council denied Farringer's request for review of the decision. T1-4. Farringer's complaint seeks review of the ALJ's decision as the final decision of the Commissioner under sentence four of 42 U.S.C. § 405(g). Filing 1.


Farringer suffers from a number of diagnosed physical and mental conditions. The record contains extensive evidence of Farringer's medical treatment and evaluation; that record has been fully reviewed, but only the particularly relevant portions will be summarized below.

Medical History

Farringer has, at various times, been in the Naval Reserve and served on active duty in Kuwait and Iraq. T316. She was involved in conflicts with other soldiers and her superiors, the details of which are unnecessary to the Court's disposition of this case. See T316-18.

Farringer was seen for a psychiatric consultation at the Lincoln, Nebraska Department of Veterans Affairs (VA) hospital on November 12, 2009. T316. Her psychiatrist, Ahsan Naseem, M.D., diagnosed her with an anxiety disorder. T316. On May 18, 2010, Naseem changed that diagnosis to posttraumatic stress disorder (PTSD). T316. At a mental health consultation in July 2010 with VA staff psychiatrist Dr. Mary Jo Hanigan, Farringer reported moderate to severe symptoms of PTSD. T317. She expressed feelings of depression and anxiety, and reported social isolation and distrust. T317. She said she had service-related nightmares two to three times per week. T317. Farringer also said she had been following up with Naseem, although notes from that treatment are not in the record before the Court.[1] T318.

Farringer told Hanigan she frequently had to call in sick to her job as a customer service representative, or had to work " 'in the back of the store'" because of anxiety or paranoia. T318. Hanigan noted that while Farringer had " been able to attain and maintain gainful employment at this point . . . as her symptoms persist she is in jeopardy of compromising her occupational function because of the irritability, the paranoia and the pronounced anxiety." T319. Hanigan's preliminary diagnosis was also PTSD. T319.

In a letter to the Nebraska Veteran Service Office dated September 13, 2010, Naseem opined that it was " unlikely that [Farringer] could sustain fulltime employment at this time" and that it was at least as " likely as not that she will continue to remain permanently and totally disabled." T604. Naseem explained that Farringer exhibited

severe continuing PTSD symptoms that impose on her daily life activities. She suffers occupational and social impairment with deficiencies in most areas such as work, judgment, thinking and mood. She experiences near-continuous panic and depression that affects her ability to function independently, appropriately, and effectively. She has difficulty adapting to stressful situations which, on occasion, creates episodes of

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unprovoked irritability and periods of violence. Her isolative and withdrawn behavior has affected her ability to establish and maintain effective relationships, which created a severe hardship in conducting her professional responsibilities.

T604. Naseem concluded that Farringer's symptoms were " chronic and her condition is not expected to change due to her psychological state." T604.

Farringer saw Naseem again at a scheduled appointment on January 5, 2011. T380. Naseem noted increased stress due to gastrointestinal illness. T380. Farringer saw Amber L. Kutayli, Ph.D., at the VA hospital on January 7 for individual psychotherapy, and reported increased depression and anxiety, exacerbated by her physical illness. T379. On January 11, Naseem saw Farringer again, assessed her condition as chronic PTSD, and prescribed medications and continued individual therapy with Kutayli. T373-74. The next day, a VA staff physician diagnosed Farringer with gastroesophageal reflux disease, and a chronic cough that was probably secondary to the reflux disease. T376. Farringer continued to see Kutayli, whose treatment notes generally reflect ongoing stress, anxiety, and depression, although some weeks were better than others. T371, T369, T339, T326, T562, T559-60.

In March 2011, Farringer was also diagnosed with fibromyalgia. T321-22. She also completed two questionnaires at the request of the state disability examiner, answering a series of detailed questions about her daily activities. T150-51. Farringer reported that she started a typical day with a " few hours getting ready" ; she explained that her medications made her groggy so it took her some time to get moving. T153. Her household chores included taking care of pets and other tasks split with her roommate, such as 30 minutes doing dishes, 20 minutes of sweeping, and laundry only if her roommate couldn't do it, because the washer and dryer were upstairs. T153. She said she had a hard time coming down stairs. T154. She said that she sometimes went a few days without a shower or a " real meal" if she was depressed or her stomach was bothering her. T153. For food, she could make simple things like canned goods, a sandwich, or cereal. T153.

Farringer said she could drive a car, but for no more than 90 minutes because of anxiety and body aches. T153. Her errands were limited to a couple of doctor's appointments a week, a weekly trip to the grocery store, and miscellaneous unplanned errands. T154. Her hobbies were several hours of painting, coloring, and writing and research a week, and a couple of hours of television per day. T154. She also volunteered at a local cat shelter on Saturday mornings and sometimes visited friends and family, although that was limited by anxiety. T154. She said she had to give up working because she suffered panic attacks working with the public and because it required her to stand up to 10 hours a day. T156.

Farringer reported sleeping about 9 hours a night, but not straight through because of nightmares. T154. She could only walk for about 30 minutes at a time without having to stop due to pain. T154. But sitting also got uncomfortable after about 90 minutes. T154. Farringer described her symptoms as including anxiety, depression, joint disease, migraines, chronic cough, and reflux disease. T155. She said that she felt tired and worn down most of the day. T155.

Farringer was seen for a consultative physical examination on May 27, 2011, by Paul Kolkman, M.D. T434. Kolkman's " impressions" were that Farringer had possible fibromyalgia and likely PTSD with

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anxiety. T439. Farringer's physical residual functional capacity (RFC) was assessed by Jerry Reed, M.D. and Arthur Weaver, D.O., who found some limitations imposed by possible fibromyalgia. T443-50, T590-98. Specifically, in September 2011, Weaver found that Farringer could occasionally lift up to 20 lbs., frequently lift only up to 10 lbs., and could sit or stand with normal breaks for about 6 hours in an 8-hour workday. T591. And Weaver opined that Farringer should avoid even moderate exposure to extreme cold. T594.

Farringer continued to see Kutayli and Naseem for mental health treatment, and the symptoms reflected in their notes remained largely the same. T559-62, T549-54, T660, T650, T627, T619. Farringer's mental RFC was assessed by Lee Branham, Ph.D. in September 2011, who found Farringer to have moderate limitations in her ability to work in coordination with or proximity to others without distraction, interact appropriately with the general public, and accept instructions and respond appropriately to criticism from supervisors. T570-71. Branham found no other significant limitations. T570-71. Branham found that Farringer was mildly limited in her activities of daily living and maintaining concentration, persistence, or pace; and moderately limited in maintaining social functioning. T585.

On December 5, 2011, Naseem, as Farringer's treating psychiatrist, completed a mental impairment questionnaire. T672. Naseem identified Farringer's symptoms as including appetite disturbance, sleep disturbance, mood disturbance, emotional lability, social isolation or withdrawal, decreased energy, psychomotor agitation or retardation, feelings of guilt or worthlessness, difficulty thinking or concentrating, and intrusive recollections of a traumatic experience. T666-67. He opined that Farringer's psychiatric condition exacerbated her experience of physical symptoms, because PTSD can induce restlessness, insomnia, and fatigue, which can in turn exacerbate chronic pain. T668.

Naseem opined that Farringer's impairments would cause her to be absent from work more than three times a month (which was the maximum answer available on the questionnaire). T669. Naseem also opined that Farringer had a good or unlimited ability to understand and remember short and simple instructions and carry them out, sustain an ordinary routine without special supervision, make simple work-related decisions, ask simple questions and request assistance, and be aware of normal hazards and take appropriate precautions. T669-70. But Farringer had only a fair ability to get along with coworkers or peers without unduly distracting them or exhibiting behavioral extremes. T670. And Farringer had no useful ability to remember work-like procedures, maintain attention for a 2-hour segment, maintain regular attendance and be punctual within customary (usually strict) tolerances, work in coordination with or proximity to others without being unduly distracted, complete a normal workday and workweek without interruptions from psychologically based symptoms, perform at a consistent pace without an unreasonable number and length of rest periods, accept instructions and respond appropriately to criticism from supervisors, respond appropriately to changes in a routine work setting, or deal with normal work stress. T669-70. Naseem explained that Farringer had cognitive limitations, remained severely socially avoidant, was guarded in the proximity of others, and experienced severe symptoms when challenged. T670.

Naseem further opined that while Farringer had a fair ability to set realistic goals or make plans independently of others, ...

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