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Kinseth v. Colvin

United States District Court, Eighth Circuit

August 20, 2013

KIMBERLY K. KINSETH, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER REGARDING REPORT AND RECOMMENDATION

MARK W. BENNETT, District Judge.

This case is before me on a Report And Recommendation (R&R) (docket no. 10) from Magistrate Judge Leonard Strand recommending that I affirm a decision by the Social Security Commissioner (the Commissioner) denying Plaintiff Kimberly Kinseth (Kinseth) disability insurance benefits (DIB) under Title II of the Social Security Act. On April 11, 2013, Kinseth filed objections to the R&R (docket no. 11). On April 19, 2013, Defendant filed a three-sentence response summarily opposing Kinseth's objections (docket no. 12). For the reasons discussed below, I decline to accept the R&R and instead remand this case to the Commissioner for further proceedings.

I. INTRODUCTION

A. Procedural Background

Judge Strand summarized this case's procedural background as follows:

Kinseth protectively filed for DIB on May 29, 2009, alleging disability beginning on October 10, 2008, due to bipolar disorder, fibromyalgia, degenerative disc disease, arthritis, bulging disk, asthma and depression. AR 192-205. Her claims were denied initially and on reconsideration. AR 61-73. Kinseth requested a hearing before an Administrative Law Judge ("ALJ"). AR 74. On April 14, 2011, ALJ John E. Sandbothe held a hearing during which Kinseth and a vocational expert ("VE") testified. AR 32-55.
On April 25, 2011, the ALJ issued a decision finding Kinseth not disabled since October 10, 2008. AR 9-31. Kinseth sought review of this decision by the Appeals Council, which denied review on April 5, 2012. AR 1-3. The ALJ's decision thus became the final decision of the Commissioner. 20 C.F.R. §§ 404.981.
On May 18, 2012, Kinseth filed a complaint in this court seeking review of the ALJ's decision. This matter was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) for the filing of a report and recommended disposition of the case.

Report And Recommendation 1-2 (docket no. 10). On August 29, 2012, Kinseth filed a brief (docket no. 7) requesting that Judge Strand reverse the ALJ's decision because (1) the ALJ failed to give good reasons for rejecting the opinions of Kinseth's three treating physicians, and (2) the ALJ gave too much weight to the opinions of non-treating state agency consultants. On October 15, 2012, the Defendant filed a brief (docket no. 8) requesting that Judge Strand affirm the ALJ's decision, arguing that the ALJ properly evaluated the medical opinions and that substantial evidence supported the ALJ's decision.

After reviewing the parties' briefs, Judge Strand issued his R&R on April 4, 2013, recommending that I affirm the ALJ's decision (docket no. 10). On April 11, 2013, Kinseth timely filed objections to the R&R (docket no. 11), which essentially re-assert the arguments made in Kinseth's earlier brief. Finally, on April 19, 2013, the Defendant filed a response to Kinseth's objections (docket no. 12), incorporating the arguments made in Defendant's earlier brief. I must now decide whether to accept or reject the R&R in light of Kinseth's objections.

B. Factual Background

In his R&R, Judge Strand made thorough findings of fact. Report And Recommendation 2-14 (docket no. 10). Neither party has objected to these factual findings. I therefore adopt the findings of fact from the R&R, which are set forth below.

1. Summary of medical evidence
a. Medical evidence of physical impairment
Kinseth began seeing Mark Johnson, M.D., at Mercy Internal Medicine Clinic in 2007 for her fibromyalgia and chronic back pain. AR 393-95. Dr. Johnson prescribed Lortab three times per day under a pain contract.[1] Id. In November 2007, Dr. Johnson noted her back pain was "quite well controlled." AR 393. Dr. Johnson also prescribed medication for Kinseth's mood disorder with sleep disorder. AR 391. He suggested she transfer to a primary care provider in 2008, but Kinseth continued seeing Dr. Johnson for several issues and he continued prescribing her medication. AR 387, 388, 390.
In May 2009, Dr. Johnson wrote that Kinseth had fairly typical symptoms of fibromyalgia and had carried this diagnosis for much of her adult life. AR 383. He noted that her symptoms waxed and waned and she would have weeks where she was comfortable and weeks when she was debilitated. Id. He wrote, "Even simple exercise can exacerbate her pain, especially upper shoulder neck pain and sometimes lower extremity limb and girdle discomfort." Id.
Kinseth began seeing Jennifer Gibson, M.D., for back pain in July 2009. AR 446. Kinseth noted that her pain worsened with increased activity. Id. She explained if she pushed herself when her pain felt under control, it would flare up and she would have to spend the next two to three days in bed. Id. Dr. Gibson spoke with Kinseth about time management and pacing, suggesting this could help control some of her pain symptoms. AR 447. She asked that Kinseth get a urine drug screen before her next appointment so they could transfer her medication management from Dr. Johnson and set up a pain contract. AR 448.
Kinseth did not come in for a drug screen before her next appointment, stating she had been busy with her grandchildren. AR 445. She provided a urine sample at the appointment and was given a three-week supply of her prescriptions to last until her next scheduled appointment. Id. The drug screen came back positive for amphetamine. AR 444. Kinseth said she had borrowed Adderall from a friend. Id. She apologized and said it would never happen again. Dr. Gibson discussed the pain contract for her Lortab prescription. Id. She wrote that a drug screen would be performed at every visit for the next six months. Id.
In October 2009, a MRI of Kinseth's spine was taken. AR 476-81. The results were summarized in a letter from David Ruen, M.D., on October 6, 2009. AR 487.
The results of your recent x-ray showed essentially no evidence of arthritis, degenerative disease or other problems. There were a couple of benign pelvic calcifications but it was otherwise unremarkable. Your neck x-ray showed minimal arthritis at C4-5 and an unfused accessory ossification center at C2-3. Your MRI scans of these areas showed a broad based disk bulge left greater than right at the C4-5 level. You had normal cord signal throughout the neck. There was no abnormal enhancement. Your MRI scan of the lumbar spine showed mild interspaced narrowing without evidence of significant arthritis. There was no spinal canal narrowing. There was minimal bulging. There was no evidence of any kind of tears and certainly no herniated disk or even bulging disks. Congratulations on these very excellent results. I look forward to our next visit.
On November 11, 2009, Dr. Gibson discussed Kinseth's functional abilities with her and made the following record:
1. She finds that pain interferes with her ability to lift weights. She can only lift five to ten pounds of weight occasionally because this does bother her neck and back.
2. The patient is not able to sit for more than 20 minutes or stand for more than 20 minutes without needing to take a break or change position. She can only walk one block before she has to sit down.
3. She has discomfort with stooping, kneeling, climbing, and crawling, and I would suggest that she avoid these activities completely.
4. She is capable of sight, hearing, speech. Travel would be limited by the restrictions on sitting, standing, and walking, handling of small objects with her hands. She does have swelling with prolonged use of both her hands and her feet.
5. We also talked about the fact that she has trouble working for prolonged periods. She did do house chores a few weeks ago. She worked about six hours straight and took 10-minute breaks as if she was at work, and by the end of the evening had to go [to] the emergency room with pain and swelling.
She does have flare-ups of her fibromyalgia. Some days are better than others. On the flare-up days, she may have pain that is severe enough that she needs to lie down for most of the day.
We have talked about pacing. I have suggested that she not work for more than 20 or 30 minutes without taking a more extensive break, possibly a 20 to 30-minute break, and she has tried to follow that in her daily life.
AR 527-28. On November 20, 2009, Dr. Gibson completed a questionnaire at the request of Kinseth's attorney. AR 558-59. She wrote that Kinseth could not stand or sit for more than 20 minutes at a time without experiencing pain and she could not kneel, climb, crawl or stoop. Id. She suggested that Kinseth's impairments would affect her attendance at work and her ability to perform under pressure. She also noted that Kinseth's concentration was impaired. Id. She stated a flare up of fibromyalgia pain could cause Kinseth to miss work. She also reported Kinseth's chronic pain was unlikely to improve and impaired Kinseth's daily functioning. Id.
On January 5, 2010, Dr. Gibson expressed concern that Kinseth may have been receiving her Vyvanse prescription from a second provider. AR 596. She also noted that Kinseth had requested early refills of her prescriptions on two occasions. Id. On one occasion, Kinseth requested an early refill stating she had lost her luggage while traveling. Id. Dr. Gibson denied this request. Id. On January 6, 2010, Kinseth reported that Dr. Johnson would no longer prescribe her Vyvanse because he believed she was seeking the prescription from multiple providers. Dr. Gibson also refused to prescribe Vyvanse, noting that Robert Stern, D.O., thought she should not take that medication. AR 595. Dr. Gibson stated that any prescription for Vyvanse would have to come from a psychiatrist. Id.
b. Medical evidence of mental impairment
On February 1, 2008, Dr. Johnson noted that Kinseth reported significant problems with sleep disorder and mood disorder. AR 424. She improved while taking Depakote but stopped using it. Dr. Johnson advised her to continue taking it and increased her prescription. Id. Later that month, Kinseth sought help for exacerbation of her depression from Glee Christ, ARNP, at Belmond Medical Center. AR 364. Her Effexor prescription was increased. Id. On May 9, 2008, Ms. Christ noted that Kinseth's moods were stabilized and she had been sleeping well. AR 363.
On May 12, 2009, Kinseth reported to Dr. Johnson that she thought she had bipolar disease. AR 387. Based on her description of symptoms, he noted, "I do think she is correct" and he prescribed Lamictal. AR 383-87.
In July 2009, Kinseth saw R.M. Ramos, M.D., at Mental Health Center of North Iowa for evaluation of attention deficit disorder. AR 440. She explained that she did not have symptoms of hyperactivity, but had difficulties concentrating on one task and finishing things she would start. Dr. Ramos indicated he wanted to perform more tests before diagnosing her and prescribing medication. AR 441.
On August 13, 2009, Brent Seaton, Ph.D., performed a neuropsychological evaluation for diagnostic clarification and treatment planning regarding Kinseth's bipolar disorder and possible attention deficit/hyperactivity disorder ("ADHD"). AR 400. Dr. Seaton concluded Kinseth's full scale IQ was 77, which is within the borderline range of general intellectual functioning. AR 405. Dr. Seaton noted that she was likely prone to difficulties interacting with people, especially those in positions of authority. AR 407. He diagnosed her with bipolar II disorder and gave her a provisional diagnosis of ADHD, stating that he needed more objective evidence. Id. He suggested that medication and individual therapy would be helpful. AR 408.
Dr. Johnson wrote a letter on behalf of Kinseth on October 8, 2009, stating:
She has been unable to work because of her underlying bipolar type II disorder. She also has chronic pain syndrome which is not under my direct care, the patient seeing Dr. Jennifer Gibson for ...

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