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Evans v. Colvin

United States District Court, Eighth Circuit

January 2, 2014

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


WARREN K. URBOM, Senior District Judge.

On September 20, 2012, Katrina Evans filed a complaint against Michael J. Astrue, who was then serving as Commissioner of the Social Security Administration.[1] (ECF No. 1.) Evans seeks a review of the Commissioner's decision to deny her applications for disability insurance benefits under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 401 et seq., and for Supplemental Security Income (SSI) benefits under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. See 42 U.S.C. §§ 405(g) and 1383(c)(3) (providing for judicial review of the Commissioner's final decisions under Titles II and XVI). The Commissioner has filed an answer to the complaint and a transcript of the administrative record. (See ECF Nos. 11-12.) In addition, the parties have filed briefs in support of their respective positions. (See Pl.'s Br., ECF No. 14; Def.'s Br., ECF No.19.) I have carefully reviewed these materials, and I find that the case must be remanded for further proceedings.


Evans filed an application for disability insurance benefits on May 3, 2005. (Transcript of Social Security Proceedings (hereinafter "Tr.") at 25, 60-62.) Her application was denied on initial review, (id. at 25, 55-58), and on reconsideration, (id. at 24, 48-52). Evans then requested a hearing before an ALJ. (Id. at 45.) This request was granted, and a hearing was held on June 17, 2008. (E.g., id. at 343.) In a decision dated July 17, 2008, the ALJ concluded that Evans "was not under a disability as defined in the Social Security Act, at any time from December 21, 2004, the alleged onset date, through March 31, 2008, the date last insured." (Id. at 23 (citation omitted). See also id. at 13-22.) Evans requested that the Appeals Council of the Social Security Administration review the ALJ's decision. (Id. at 12.) This request was denied. (Id. at 5-7.)

On December 29, 2008, Evans filed a complaint in this court seeking a review of the Commissioner's decision to deny her claim for benefits. See Evans v. Astrue, No. 4:08CV3266 (D. Neb. December 29, 2008). United States District Judge Richard G. Kopf determined that the ALJ erred by failing to address adequately the opinions of Janet Duba, RN, APRN, and he ordered that the case be remanded to the Commissioner for further proceedings. Evans v. Astrue, No. 4:08CV3266 (D. Neb. April 22, 2010). In accordance with this order, the Appeals Council vacated the Commissioner's decision and directed an ALJ to conduct further proceedings. (Tr. at 423.) The Appeals Council also noted that Evans filed an application for SSI benefits on April 20, 2010, and ordered that the ALJ "consolidate the claims and issue a decision on the consolidated claims." (Id.)

A second hearing was held before a different ALJ on October 15, 2010. (Id. at 584.) In a decision dated October 22, 2010, the ALJ concluded that Evans "has not been under a disability, as defined in the Social Security Act, from December 9, 2004, though the date of this decision." (Id. at 408. See also id. at 397-407.) Evans requested that the Appeals Council review the decision, (id. at 396), and this request was denied on July 31, 2012, (id. at 391). Thus, ALJ's decision of October 22, 2010, now stands as the Commissioner's final decision.


On a Disability Report form, Evans claimed that she became disabled on December 20, 2004, due to multiple sclerosis (MS), fatigue, depression, and anxiety. (Tr. at 425, 429.) She was 30 years old on the alleged onset date, and she completed two years of college education. (Id. at 425, 430.) She has work experience in department store sales and as a server in restaurants. (Id. at 431.)

A. Medical Evidence[2]

Records indicate that Janet Duba, RN, APRN, began treating Evans on August 28, 2002, for mood-related mental health problems. (Tr. at 183.) Evans visited Nurse Duba approximately seven times between August 28, 2002, and the alleged onset date. (See, e.g., id. at 189-95.) On March 13, 2003, Nurse Duba diagnosed "Bipolar NOS probably type II, " and prescribed Abilify. (Id. at 193.) Soon after, Evans reported that she "really like[d]" the effects of her medication, and records dated September 29, 2003, March 30, 2004, and September 13, 2004, indicate that Evans had been suffering no panic attacks. (Id. at 189-92.)

On March 1, 2005, Evans visited Rebecca Steinke, M.D., [3] and reported weakness and vision problems in her left eye. (Id. at 126.) She also reported that she had been feeling "heaviness or clumsiness in the left arm and left leg" at about the same time that her vision problems developed. (Id.) Dr. Steinke ordered a CT of the head and other tests. (Id. at 125.) An MRI of the brain performed on March 3, 2005, revealed "two questionable white matter lesions in the supratentorium white matter" and apparent "demyelination in the lateral aspect of the pyramidal tracts of the left side of the medulla [that] is strongly suspicious for multiple sclerosis." (Id. at 132.) Also on March 3, 2005, Evans visited Michele Gleason, M.D., for an assessment of her vision problems. (Id. at 213.) Evans reported to Dr. Gleason that during the past two weeks, she had been seeing double when looking left, and she was experiencing blurred vision. (Id.) Dr. Gleason diagnosed "diplopia on [left] far gaze" and possible lateral rectus weakness of the left eye, and Evans was directed to return for a follow-up in one month. (Id.)

On March 4, 2005, Evans visited Ahmed Sadek, M.D., for a neurological evaluation. (Id. at 206-08.) Evans complained of depression, forgetfulness, occasional headaches, weight loss, numbness, excessive sweats, poor appetite, nausea, stomach pains, blurred vision, double vision, "flashes of vision, " halos, hot flashes, and pain in her arms, legs, feet, and hands. (Id. at 206-07.) Dr. Sadek diagnosed "Possible MS (in exacerbation), " and wrote:

The findings noted and her current symptoms and neurologic examination raises concern for dissemination in space and time which usually is seen in multiple sclerosis relapse and remitting type. On the other hand her MRI findings are very subtle and based on the recommended criteria used for diagnosis of MS based on MRI finding she at best would fall into the possible MS category.

(Id. at 207-08.) Dr. Sadek recommended various tests and treatments, and he advised Evans to follow up in six weeks. (Id. at 208.)

On March 22, 2005, Evans visited Nurse Duba and reported that she was feeling angry about her MS diagnosis. (Id. at 188.) Nurse Duba indicated that Evans' condition had worsened, continued her prescriptions, and directed her to return for a follow-up. (Id.)

Evans followed up with Nurse Duba on April 19, 2005, and reported feeling discouraged and useless. (Id. at 187.) Nurse Duba also noted that Evans had a "pronounced limp." (Id.) Evans' Paxil was continued, and her Remeron dosage was increased. (Id.)

On April 21, 2005, Evans returned for a follow-up and an IV treatment with Dr. Sadek. (Id. at 203-05.) Based on lab tests and MRIs of the spine revealing demyelineation, Dr. Sadek diagnosed "MS relapsing remitting." (Id. at 204.) Dr. Sadek advised Evans to begin physical therapy to improve the weakness in her lower extremities, and he started her on Avonex. (Id.)

Evans followed up with Dr. Gleason on April 27, 2005. (Id. at 211.) She reported that her diplopia remained but had improved, and Dr. Gleason directed her to return in two or three months. (Id.)

Evans visited Nurse Duba on May 17, 2005, and reported that she stopped taking Paxil. (Id. at 186.) She was feeling angry but was "not as depressed." (Id.) She reported that physical therapy was helping her walk, but she was having problems with balance, numbness, and fine motor skills. (Id.) Nurse Duba noted that Evans had an improved mood and attitude, and she ordered no change in medication. (Id.) However, on May 26, 2005, Evans reported increased anxiety, and Nurse Duba ordered her to resume taking Paxil and continue with her Remeron. (Id. at 185.)

On June 23, 2005, Evans followed up with Dr. Sadek. (Id. at 201-02.) She reported that she suffered "a recent relapse that affected her lower extremities and caused her to have double vision, " but her symptoms improved, and she was no longer "complaining of any major double vision or any weakness in the lower extremities." (Id. at 201.) She was taking Avonex "for disease control, " Amantadine for fatigue, " and Paxil "for depression and anxiety." (Id.) She was also taking Premarin and Xanax. (Id.) Evans' muscle strength, tone, and bulk was normal, as was her gait. (Id.) Dr. Sadek advised Evans to continue all of her medications and to "avoid direct sun, heat or any exposure to hot showers." (Id. at 202.)

Evans visited Nurse Duba on July 12, 2005, and reported that she quit taking her Remeron, but was continuing to take Paxil. (Id. at 184.) She also reported that she was sleeping well, and her walking and vision were better. (Id.) Nurse Duba noted that Evans' condition was improved. (Id.)

On July 26, 2005, Evans followed up with Dr. Gleason and reported that she was experiencing pain around her eye. (Id. at 210.) Dr. Gleason noted that Evans' eye pain could be secondary to a strain. (Id.)

Alan Smith, Ph.D., examined Evans on July 28, 2005, and prepared a psychological report dated August 6, 2005. (Id. at 143-50.) Evans told Dr. Smith that she wanted to provide foster care for children, and she was having difficulty accepting that she might not be able to do so due to her illness. (Id. at 144-45, 146.) She said that she had been advised "to avoid all stress and to discontinue working and to seek Social Security support." (Id. at 145.) She explained that she first began to suffer depression in her early twenties, and her panic disorder began after she underwent a hysterectomy at approximately age 27. (Id. at 146.) She was prescribed Paxil and Xanax, and she underwent counseling. (Id.) Eventually she "worked herself back to a functional level, " and she "was able to provide foster care to children." (Id.) She said that she had symptoms of anxiety and depression after being diagnosed with MS, but "she has been able to manage them to this point in time." (Id.)

Dr. Smith administered a "mini-mental status exam, " and Evans' "total score of 30 out of 30 possible points suggest[ed] no cognitive impairments." (Id. at 147.) However, Evans "did take a bit of time to perform serial 7s suggesting mild difficulty with working memory skills." (Id.) Testing also revealed Evans' "general intellectual skills are likely to fall solidly within the average range, " and "high average" to "very superior" memory skills apart from working memory. (Id. at 147-48.) Dr. Smith diagnosed "Adjustment Disorder with Mixed Anxiety and Depressed Mood, " and a current GAF of "54, mild."[4] (Id. at 149.) Dr. Smith wrote,

My prognosis for the occupational function of this individual based solely on her psychiatric syndromes or disorders is excellent. [Evans] does not reveal cognitive, emotional or behavioral problems that would interfere with her ability to perform work in any setting necessarily. The claimant does report [a] rather serious medical disorder affecting her ability to tolerate stress and to perform tasks generally. I refer the reader to medical records for discussion of the effects the claimant's multiple sclerosis has, upon her occupational function. [Evans] is an individual who appears to genuinely need productive activity on a regular basis. Hence, as the claimant adjusts to the limitations imposed by her multiple sclerosis, I would venture to guess that symptoms of anxiety and depression are likely to become exacerbated. I believe that as [Evans] has to fully face the nature of her medical disorder, she will begin to struggle psychologically. Hence, I would keep a close eye on Ms. Evans as she struggles with facing her disabling medical condition.

(Id. at 149-50.)

On August 11, 2005, Jerry Reed, M.D., reviewed the record and completed a "Physical Residual Functional Capacity Assessment." (Id. at 156-64.) Dr. Reed opined that Evans could occasionally lift and/or carry 20 pounds, frequently lift and/or carry 10 pounds, stand and/or walk for about 6 hours in an 8-hour workday, sit for about 6 hours in an 8-hour workday, and engage in unlimited pushing and/or pulling within the aforementioned limits. (Id. at 157.) He also opined that Evans should never climb ladders, ropes, or scaffolds, and that she should avoid concentrated exposure to heat, cold, fumes, and hazards. (Id. at 158, 160.)

Evans visited Nurse Duba on September 26, 2005, and reported that she was not doing well. (Id. at 180.) Nurse Duba's notes suggest that Evans was "just off steroids" and her symptoms "moved to the opposite side." (Id.) Nurse Duba instructed Evans to restart Remeron and directed her to follow up in one to two months. (Id.)

On September 29, 2005, Evans visited Dr. Sadek and reported that she was still experiencing numbness, weakness, pain, vision problems, and fatigue despite taking her medications, including Avonex and IV Solu-Medrol. (Id. at 198-99.) Dr. Sadek advised Evans that she "may be better off switching to some other interferon or Copaxone" and advised her to call in when she has made up her mind about which medication to use. (Id. at 199.)

A record dated October 25, 2005, indicates that Evans was suffering from "[p]ersistent sinusitis" and a "current flare" of MS. (Id. at 228.) She received IV infusions of Solu-Medrol in November 2005 and February 2006. (Id. at 311-13, 315, 323.)

From March 9 to March 14, 2006, Evans was hospitalized after she cut her wrists with a razor. (Id. at 260-79.) Records indicate that Evans suffered severe relapses of MS, which necessitated four hospitalizations for Solu-Medrol treatment. (Id. at 260.) As her symptoms increased, so did her depression and feelings of uselessness and hopelessness. (Id.) An MRI revealed demyelinating plaques from MS, "about 5 or 6 lesions in the cerebral hemisphere... and some diffusion suggestive of active lesions." (Id. at 261.) Evans' affect, insight, and willingness to share her feelings improved as her hospital stay progressed, and Virginia Aguilar Sincaban, M.D., recommended that Evans be committed to outpatient treatment. (Id. at 262.) Dr. Aguilar Sincaban's final diagnoses included "Mood disorder secondary to multiple sclerosis with severe depression and anxiety, suicidal"; "Multiple sclerosis, remitting and relapsing on Copaxone. Each relapse is worse than before"; and "Psychosocial stressors, severe, secondary to multiple sclerosis resulting in her inability to function the way she wanted, financial difficulties, being fully dependent on her husband." (Id.) Evan's GAF score was 10 upon her admission, and 61 upon her discharge. (Id.)

On August 22, 2006, Nurse Duba completed a "Medical Source Statement." (Id. at 181-83.) In her statement, Nurse Duba listed "Panic Disorder, " "Bipolar type II, " and MS (among other things) as Evans' diagnoses. (Id. at 181.) Nurse Duba noted that Evans "[d]oes fairly well when on meds, " but she "doesn't like to take medicine so periodically stops, changes etc." (Id.) She opined that Evans was markedly limited in "[t]he ability to understand and remember detailed instructions"; "to maintain attention and concentration for exten[d]ed periods"; "to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances"; "to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods"; and "to travel in unfamiliar places or use public transportation." (Id. at 181-82.) Nurse Duba also opined that Evans would miss more than four days of work per month due to her impairments or treatment. (Id. at 183.)

On September 12, 2006, Evans visited Central Nebraska Orthopedics on a referral from Dr. Sadek. (Id. at 239.) Following an examination, Evans was diagnosed with bilateral trochanteric bursitis. (Id.) Her physician explained to Evans that "because of her MS she has abductor weakness and as a result secondary trochanteric bursitis." (Id.) He recommended that she begin an outpatient physical therapy program. (Id.) Evans attended physical therapy sessions on September 15, 18, 22, 25, 27, and 29, and on October 2, 4, 6, and 11. (Id. at 572-81.) The physical therapy record dated October 11, 2006, states that Evans was "just stiff" but no longer feeling pain, and her physical therapy was discontinued due "to progress made." (Id. at 572.)

On December 11, 2006, Evans was examined by Pierre Fayad, M.D., and Kathleen Healey, APRN, at the Multiple Sclerosis Clinic at the Nebraska Medical Center. (Id. at 253-59.) Dr. Fayad wrote a letter to Dr. Sadek stating, in part, as follows:

[Evans] was treated with Avonex for six months under which she had three attacks and felt tired and had difficulty tolerating it. She was switched to Copaxone in November of 2005 on which she has been for over a year. From March until now she has had at least two to three exacerbations. The most recent exacerbation happened in September when she had numbness involving her right arm and leg along with severe and disturbing sensation of itching and burning. She has unfortunately experienced severe psychiatric issues associated with both the Avonex which caused depression, and steroids which caused a suicide attempt in March of 2005. She has been hospitalized for psychiatric issues that are related to that....
Her examination shows mild ataxia but otherwise subtle deficits. Her gait ...

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