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Lovell v. Colvin

United States District Court, W.D. Wisconsin

January 10, 2017

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


          WILLIAM M. CONLEY District Judge.

         Plaintiff Cheryl Lovell seeks judicial review of a final decision of defendant Carolyn W. Colvin, the Acting Commissioner of Social Security, under 42 U.S.C. § 405(g), which denied her application for Supplemental Security Income and Social Security Disability Insurance benefits. On June 24, 2016, the court heard oral argument regarding plaintiff's contentions that the administrative law judge (“ALJ”) failed in the following respects: (1) to obtain a valid waiver of counsel; (2) to include mental limitations assessed by a consulting examiner in the residual functional capacity (“RFC”) assessment; (3) to make a proper credibility assessment; (4) to give adequate consideration to the effect of Lovell's obesity on her fibromyalgia; and (5) to assess whether Lovell's combined impairments met or equaled the criteria for Listing 14.09D for arthritis. Because the court agrees that the ALJ failed to obtain a valid waiver of counsel, the case will be remanded for further development of the record with respect to Lovell's mental limitations and reconsideration of the RFC and credibility assessments. While the ALJ's cursory analyses of the relevant listings and Lovell's obesity may not constitute reversible error by themselves, the ALJ should also address both issues on remand more thoroughly.


         Lovell claims a disability onset date of November 21, 2009, because of chronic pain, fibromyalgia, obesity, and carpal tunnel syndrome. (AR 36, 38-40 and 250-61.) In addition, Lovell testified that she has symptoms of depression and asthma, for which she takes medication. (AR 40-42.) She was 42 years old when she applied for benefits in June of 2011.

         Lovell completed a four-year college degree in accounting, earned associate degrees in art and computers, and has past work experience as a nursery school teacher, day care director, order filler, certified nursing assistant, nanny, and clerk. (AR 229.) At the time of the administrative hearing held on June 19, 2013, Lovell had been working three eight-hour shifts a week for two and a half years as a house manager in a transitional living facility for the disabled. (AR 32-33, 229.)

         The record contains limited medical information from Lovell's treating providers and no medical records dated before 2011. At the hearing, Lovell explained that she did not have health insurance around the time of her onset date in November 2009, and she could not afford psychological treatment. (AR 40.) However, several consulting physicians submitted opinions concerning Lovell's physical and mental condition.

         I. Medical Record and Reports

         In May 2011, Lovell sought treatment from a certified physician assistant, Laurie Van Grinsven, for a variety of ailments. (AR 275-83.) Grinsven noted that Lovell was suffering from depression and chronic pain syndrome, and that she likely had fibromyalgia. Although Lovell was treated with several medications, none helped her depression, insomnia, or pain. (AR 270-74.) Over the next four months, Grinsven reported that Lovell's pain and fibromyalgia was not improving. (AR 263, 266, 323-24.) On August 19, 2011, Lovell told Grinsven that her depression was significantly better, but that she had numbness and pain in both hands.

         On August 30, 2011, state agency physician, Dr. Craig Childs, conducted a psychiatric review of Lovell's medical records, concluding that Lovell did not have a severe impairment and only a single episode of major depressive disorder that improved with sleep and pain control. (AR 303-15.) Nevertheless, on September 16, 2011, Grinsven noted that Lovell reported continued pain and numbness in her hands and that her depression was returning. (AR 320-22.) A few months later, on December 22, 2011, Lovell showed no improvement and reported bad depression. (AR 363-64.)

         On January 13, 2012, Lovell saw a rheumatologist, Dr. Thomas Bartow. Lovell reported a 10- to 11-year history of generalized pain, numbness in her hands, and a lack of support in her knees and ankles. (AR 353-54.) A physical exam showed a positive Tinel sign bilaterally, along with universally positive fibromyalgia tender points.[1] Dr. Bartow assessed Lovell with fibromyalgia, morbid obesity, asthma, depression, and carpal tunnel syndrome. Bartow noted that her chronic pain was likely to continue and that she was not a candidate for interventions other than an exercise program. Bartow specifically noted that medications had not been effective in controlling her fibromyalgia. (AR 355.)

         On January 23, 2012, Dr. Kyla King performed a psychiatric review of Lovell's medical records for the Social Security Administration. She found that Lovell did not have a severe impairment and had experienced only a single episode of major depressive disorder that had improved with Cymbalta. King also noted that Lovell did not report any psychiatric difficulties with her daily activities. (AR 328-40.)

         In her “self-function report, ” dated July 6, 2012, Lovell wrote that she could not lift heavy things; stand more than 5 to 10 minutes at a time; write, type, or hold or pick things up because she had lost all feeling in her hands. (AR 221.) Although Lovell stated that she suffered from insomnia and memory loss as a result of her increasing pain and depression, she reported being able to pay attention “forever” and not having any problems following instructions. (AR 221, 226.) She also wrote that she could not work more than 24 hours a week because she could not cope with the pain and had trouble staying awake and remembering things at work. (AR 227.)

         In a letter dated August 9, 2012, a sexual assault victim services coordinator also stated that she had seen Lovell weekly for four weeks and would be meeting with her for total of 12 weeks concerning her childhood sexual abuse. (AR 372.) On August 15, 2012, Lovell sought further treatment from Dr. Ruta Pakalns, who noted that Lovell had a history of childhood sexual abuse and had been having panic attacks one or two times a day. (AR 377-78.) Pakalns found that Lovell had fibromyalgia, chronic post-traumatic stress disorder, chronic pain, and panic attacks. (AR 381-82.)

         On September 27, 2012, state agency physician Dr. Richard Hulburt conducted a mental status evaluation of Lovell, who reported that she was not taking any pain medication at that time and had nightmares related to past trauma and abuse. (AR 383, 439.) Dr. Hulburt opined that Lovell would not have problems with simple instructions or getting along with supervisors and coworkers, but would have difficulties with concentration and attention. Hulburt diagnosed her with chronic, complex post- traumatic stress disorder and arrived at a global assessment functioning score of 50, indicating severe symptoms or a serious impairment in functioning. (AR 385, 441-42.)

         Finally, on November 21, 2012, state agency physician Dr. Beth Jennings completed a mental RFC assessment, noting that Lovell had a severe mental impairment with the following moderate functional limitations: understanding, remembering, and carrying out detailed instructions; maintaining concentration and attention; completing a normal work day and week without interruption; performing at a consistent pace; and responding appropriately to changes in work setting. In finding Lovell limited to unskilled work, Dr. Jennings gave great weight to Dr. Hulburt's evaluation. (AR 416-18.)

         II. ...

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