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Hayek v. Colvin

United States District Court, Eighth Circuit

September 27, 2013


David L. Christianson, Esq., 1201 Marquette Ave., Suite 110, Minneapolis, MN 55403, and Thomas A. Krause, Esq., 6611 University Ave., Suite 200, Des Moines, Iowa, 50324, for Plaintiff.

Ana H. Voss, Assistant United States Attorney, 300 South Fourth Street, Suite 600, Minneapolis, MN 55414, for Defendant.


TONY N. LEUNG, Magistrate Judge.

Plaintiff Mary Beth Hayek ("Hayek") disputes the Commissioner's denial of her application for disability insurance benefits ("DIB"). Judicial review in the United States District Court for the District of Minnesota is proper under 42 U.S.C. § 405. The parties consented to jurisdiction by the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73, to conduct any and all proceedings in this case. (Doc. Nos. 7, 8.) This matter is before the Court on the parties' cross motions for summary judgment (Doc. Nos. 15, 22.) For the reasons discussed below, Plaintiff's motion for summary judgment is granted for remand (Doc. No. 15), and Defendant's motion for summary judgment is denied (Doc. No. 22).


A. Procedural History

Hayek was 46-years old when she filed her application for DIB on November 5, 2006, and she alleges a disability onset date of April 1, 2006. (Tr. 9, 189-91, 239.)[2] Hayek's application was denied initially and upon reconsideration. (Tr. 103-07, 112-14.) She requested a hearing, and a hearing was held on June 16, 2009, before Administrative Law Judge Roger W. Thomas ("ALJ"). (Tr. 115-17, Supp. Tr. 1026-62.) On July 17, 2009, the ALJ denied Hayek's claim. (Tr. 83-97.) Hayek requested review of the ALJ's decision by the Appeals Council. (Tr. 145-146.) The Appeals Council granted review and, on March 3, 2011, remanded to the ALJ for further proceedings, and to issue a new decision. (Tr. 98-102.)

A second hearing was held before ALJ Thomas on May 17, 2011. (Tr. 34-80.) The ALJ issued a decision denying Hayek's claim on May 20, 2011. (Tr. 5-24.) The ALJ concluded that Hayek was capable of performing jobs such as optical assembly, electronics assembly, bench assembly and housekeeping/cleaner, which exist in significant numbers in the national economy. (Tr. 23-24.) Therefore, the ALJ found Hayek was not under a disability, as defined in the Social Security Act, from April 1, 2006 through the date of the ALJ's decision. (Tr. 24.)

Hayek requested review of the ALJ's decision by the Appeals Council. (Tr. 30-33.) The Appeals Council denied review on June 14, 2012 (Tr. 1-5), and the ALJ's decision became the final decision of the Commissioner of Social Security. See Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008) (Appeals Council's denial of review made the ALJ's decision the final decision of the Commissioner). Hayek initiated the present action for judicial review on August 14, 2012.

B. Employment History

Hayek's past employment includes video rental store sales from June 1992 through April 2001, receptionist from April 2001 through September 2001, manager of a video rental store from September 2001 through November 2005, and intake and clerical work for a police impound lot from November 2005 through April 2006. (Tr. 254.) Hayek left the video rental job in 2005 because she disliked it. (Tr. 65, 403, 489.) Her next job ended in April 2006 because it was seasonal. ( Id. )

C. Medical Records

1. Before the Alleged Onset Date

Hayek was diagnosed with fibromyalgia in 2000. (Tr. 340.) Her medical record reflects methadone overdoses in 2002 and 2003, as well as positive urine screenings for methamphetamines and PCP in 2002. ( Id. ) While it was recommended that Hayek complete a chemical-dependency evaluation, there is no evidence in the record that such an evaluation occurred. (Tr. 340-41.) Upon changing providers in July 2004, Hayek was prescribed hydrocodone. (Tr. 341.) Her medical record also includes referrals to pain clinics, but no evidence that she actually attended. ( Id. )

In October 2005, Hayek transferred her care within the United Family Practice Health Center ("United Family") to Dr. Laurie Radovsky. (Tr. 340-41.) Hayek had only been to United Family three times in 2005, and she said she was not currently on any narcotics. (Tr. 341.) She had pain in her neck, shoulders, knees, lower back and right chest wall. (Tr. 340.) She had been on many medications with no relief, and she had tried other medications that caused side effects. (Tr. 341.) She complained of a fibromyalgia flare with significantly decreased sleep, and she was looking for new ways of coping with her pain and becoming functional. ( Id. ) Hayek was not considered to be a candidate for back surgery because she did not have evidence of nerve impingement. ( Id. ) She had already tried the following treatments for pain: acupuncture, chiropractic treatment, hypnosis, homeopathy, physical therapy, exercise, massage, nerve blocks, trigger point injections, steroid injections, counseling and diet. ( Id. )

On examination, Hayek appeared relatively comfortable while sitting, but her gait was slow with some mild discomfort. ( Id. ) Dr. Radovsky diagnosed fibromyalgia, chronic pain and history of chemical dependency, with evidence of chemical dependency treatment in 1980 and alcoholism treatment. (Tr. 340-41.) Hayek did not believe she had a chemical dependency problem. (Tr. 341.)

Dr. Radovsky referred Hayek to Dr. Alfonso Morales at Central Medical Clinic for a second opinion on fibromyalgia, and Dr. Morales evaluated Hayek on November 11, 2005. (Tr. 415.) Dr. Morales noted Hayek had a history of alcohol abuse in her early 20s, but had been sober for the last ten years, and she also had a history of opiate abuse. ( Id. ) On examination, Hayek was in no acute distress, but she was severely deconditioned. (Tr. 416.) She had restricted range of motion in the hips and cervical spine, and tenderness in the thoracic and lumbar areas. ( Id. ) She was neurologically intact. (Tr. 416-17.) Strength, sensation and reflexes in her extremities were normal. (Tr. 417.) Her deconditioning affected her trunk balance and gait. ( Id. ) Dr. Morales diagnosed chronic pain syndrome, fibromyalgia, history of misuse of opioids and chemical coping, and history of substance abuse. ( Id. ) He made changes to Hayek's medications. ( Id. )

On November 25, 2005, Hayek complained of headaches, neck pain, dizziness and imbalance. (Tr. 411.) Dr. Morales agreed to prescribe OxyContin, dependent on her exercising, engaging in cognitive behavioral therapy, and quitting smoking. (Tr. 412.) In December 2005, Hayek's husband lost his job, and they lost their insurance. ( Id. ) Dr. Morales noted Hayek was working, her fibromyalgia was stable, and she was becoming more active and functional. (Tr. 407.) Hayek had trigger point injections in the cervical-thoracic area with some relief. (Tr. 396, 399.)

On February 27, 2006, Dr. Morales wanted Hayek to taper off OxyContin, and Hayek agreed. (Tr. 393.) Her Cymbalta would be increased. ( Id. ) Hayek then saw Dr. Radovsky on March 13, 2006. (Tr. 335.) She reported that trigger point injections relieved her pain 40% but relief only lasted a little more than a week. ( Id. ) The Cymbalta was not effective. ( Id. ) Hayek was tearful and frustrated from pain. ( Id. ) She was also worried because her seasonal job ended. ( Id. ) Dr. Radovsky noted that multiple medications had not been helpful for Hayek or had caused side effects in the past. ( Id. ) She had already been through treatment at the Abbott Northwestern fibromyalgia program, and the Healtheast Pain Clinic for fibromyalgia. ( Id. ) Hayek had not seen her therapist for some time. ( Id. ) Dr. Radovsky noted Hayek had an extremely low pain threshold due to her fibromyalgia. (Tr. 336.) She referred Hayek to Rheumatology Nurse Associates for fibromyalgia treatment. ( Id. )

On March 27, 2006, Hayek followed up with Dr. Morales. (Tr. 390.) Dr. Morales was trying to wean Hayek from OxyContin and treat her with diet and exercise. ( Id. ) Dr. Morales noted that Hayek required psychotherapy and chemical evaluations on a frequent basis. ( Id. ) Hayek agreed to reduce her OxyContin to twice a day, and to start pool therapy three times per week. ( Id. )

2. After the Alleged Onset Date

On May 2, 2006, Hayek obtained a refill of her prescriptions and stated that she would be changing providers for insurance reasons. (Tr. 387.) Hayek was subsequently evaluated by Nurse Greta Abruzzese at Rheumatology Nurse Associates on May 9, 2006. (Tr. 336, 359.) Hayek reported having pain everywhere, chronic fatigue and stiffness, with symptoms present for more than ten years. (Tr. 359.) Hayek recently became unemployed from seasonal work, but hoped to return next season. ( Id. ) When asked to describe her activities of daily living, Hayek stated that she and her husband shared grocery shopping and housework, but she did the cooking. ( Id. ) She forced herself to walk 5-7 days a week for 45-60 minutes. ( Id. ) She used a hot bath at home to relax and stretch. ( Id. ) She had memory and concentration problems when in pain. ( Id. ) She only slept five hours at night and did not feel refreshed. ( Id. )

On examination, Hayek's gait and station were normal, and she had crepitus in both knees. (Tr. 360.) She had fair range of motion, without joint tenderness or swelling. ( Id. ) She had muscle tightness in the upper trapezius muscles but no spasms. ( Id. ) She had seventeen out of eighteen tender points. (Tr. 360.)

On May 14, 2006, Hayek returned to Dr. Radovsky, appearing more animated and less depressed and anxious than on previous visits. (Tr. 334.) She was frustrated, however, with her search for employment. ( Id. ) Dr. Radovsky referred Hayek to an orthopedist for management of knee pain, noting probable arthritis. (Tr. 334.) Dr. Radovsky planned to wean Hayek off narcotics. ( Id. )

Hayek followed up with Abruzzese later that month. (Tr. 363.) She asked for oxycodone, but Abruzzese declined and recommended using heat, ice, acupuncture and stretching. ( Id. ) Abruzzese also recommended walking only fifteen minutes, five times per week. ( Id. )

Hayek next saw Abruzzese on June 16, 2006. (Tr. 364.) Hayek reported financial stress because her husband was out of work due to carpal tunnel surgery. ( Id. ) Hayek was looking for a job, although she did not believe she could physically handle working. ( Id. ) She tried walking ten or fifteen minutes once or twice a day, which was helpful for her leg pain and swelling. ( Id. ) Abruzzese provided Hayek with a handout entitled "Fibromyalgia and Employment." ( Id. ) She urged Hayek to consider part-time work "and to evaluate potential jobs in light of the concerns raised on the handout: repetitive movements, nonergonomic body positioning, lifting and carrying, pushing heavy objects, and long hours or rotating shifts." ( Id. )

When Hayek saw Dr. Radovsky on July 10, 2006, she was suffering financial stress and became tearful during the conversation. (Tr. 333.) After stopping her pain medications for a few days, she had a tremendous pain flare-up. ( Id. ) She was trying to exercise by walking her dog twice daily. ( Id. ) On examination, she did not appear to be in extreme discomfort. ( Id. ) She was given a toxicology screen, which was positive for cocaine and alprazolam (Xanax). ( Id. ) Hayek admitted taking someone else's Xanax in order to sleep but denied using cocaine. ( Id. ) Dr. Radovsky explained that she could not prescribe any more narcotics. ( Id. )

Hayek was evaluated by Dr. Michael Espeland at Midway Pain Center on September 13, 2006. (Tr. 471-72.) Her most prominent pain at the time was under the right breast; intercostal nerve injections had been helpful for this in the past, with relief lasting several months. (Tr. 471.) She was working 20-30 hours per week doing computer work. (Tr. 472.) On examination, she was alert and oriented, with intact memory. ( Id. ) She did not exhibit overt pain behaviors. ( Id. ) Her strength was normal but some range of motion exercises caused pain, and she was diffusely tender in the trapezius and cervical musculature. ( Id. ) Dr. Espeland referred Hayek for physical therapy. (Tr. 473.)

A week later, Hayek returned to Dr. Espeland, complaining of severe pain and frequent fibromyalgia flares. (Tr. 468.) On examination, she arose from sitting to standing with slight difficulty and walked with an antalgic gait. ( Id. ) She was alert and oriented, and in no apparent distress. ( Id. ) Dr. Espeland instructed Hayek to treat her fibromyalgia and chronic pain with physical therapy, muscle relaxants, antiinflammatories, and adjunctive medication like Cymbalta. ( Id. ) Hayek felt she needed oxycodone for flare-ups, and Dr. Espeland explained using opioids for flare-ups was inadvisable. (Tr. 469.) Hayek refused a muscle relaxant because she had tried it before without benefit. ( Id. ) She was amenable to diet changes. ( Id. ) Dr. Espeland administered a nerve block for Hayek's chest-wall pain. (Tr. 470.) Approximately 30 minutes after the administration of the nerve block, Hayek reported 30% relief. ( Id. )

Dr. Mark Agre at IMPACT-Physical Medicine and Aquatic Center evaluated Hayek on October 13, 2006. (Tr. 460-62.) Hayek told Dr. Agre that she hoped to return to her seasonal job in November. (Tr. 460.) Her pain increased with most postures and activities, but she felt better lying on her back or walking. (Tr. 461.) She reported that she could sit for ten minutes, stand for fifteen minutes, and walk fifteen blocks. ( Id. ) On examination, she could walk freely but had pain with transitioning. ( Id. ) She had diffuse deconditioning affecting range of motion. ( Id. ) Dr. Agre recommended starting in the therapeutic pool. ( Id. ) Hayek attended therapy from October 13 through November 21, 2006. (Tr. 447-56.)

Contrary to her report of 30% relief post-injection, Hayek reported that the nerve block did not provide any improvement when she saw Dr. Espeland on October 19, 2006. (Tr. 466.) She had just taken her last dose of oxycodone, and felt it was helpful in allowing her to carry out her activities of daily living. ( Id. ) She used heat and rest to treat pain flare-ups. ( Id. ) On examination, she did not exhibit overt pain behavior, and she did not appear sedated or drowsy. ( Id. ) Dr. Espeland prescribed oxycodone upon agreement that Hayek would not receive narcotics from any other provider and would undergo random drug screens. ( Id. ) On November 6, 2006, Hayek reported warm pool therapy helped her fibromyalgia, and oxycodone took the edge off her pain. (Tr. 464.) She continued to have difficulty sleeping. ( Id. ) On examination, she appeared somewhat uncomfortable, with guarded movement but steady gait. ( Id. ) Dr. Espeland recommended trigger point injections to treat chest-wall pain. (Tr. 465.)

Hayek underwent a consultative psychological examination with Dr. Alford Karayusuf on December 23, 2006. (Tr. 488-90.) Hayek stated that she had been depressed ever since she was diagnosed with fibromyalgia years earlier. (Tr. 489.) She was taking Cymbalta, without improvement in her depression. ( Id. ) She was in constant pain and cried often, with recurring suicidal thoughts. ( Id. ) Her last job was at an impound lot, where cars were impounded during snow emergencies. ( Id. ) She had not worked this year because there had not been any snow. ( Id. )

Hayek described her daily activities. ( Id. ) She lived with her husband and 13year-old daughter. ( Id. ) She had two other children, aged 28 and 26, and she had contact with them every other day. ( Id. ) Hayek bathed once a week. ( Id. ) She did her cooking in the microwave, and her husband did the grocery shopping. ( Id. ) She vacuumed once a month, and washed dishes three times a week. ( Id. ) Her husband did the laundry. ( Id. ) She watched television three hours per day, and had no other hobbies or social activities other than talking to her siblings on the phone. (Tr. 490.)

Dr. Karayusuf estimated Hayek's IQ to be in the mid-80s. ( Id. ) She appeared sad, tired, pale and tense, and she looked physically ill. ( Id. ) Dr. Karayusuf diagnosed depression. ( Id. ) Based on her psychiatric condition, he opined that Hayek would be restricted to work with brief and superficial interactions with co-workers, supervisors and the public, performing simple, routine, repetitive, concrete, tangible tasks. (Tr. 490-91.)

In February 2007, Hayek had right hip, knee and foot pain. (Tr. 512.) Examination revealed some crepitus in the knees, and slight pain with range of motion of the hips. ( Id. ) Knee x-rays showed minimal arthritic changes, and pelvic x-rays showed no hip degeneration. ( Id. ) Dr. Jay Johnson at Capitol Orthopedics, Ltd. diagnosed hip pain from greater trochanteric bursitis, and knee pain from patellofemoral malalignment due to weakness. (Tr. 513.) Hayek had an MRI of her lumbar spine, revealing mild disc dehydration changes at L5-S1 with mild annular bulge, and mild predominantly left-sided facet degeneration at L5-S1. (Tr. 514.)

On July 19, 2007, Dr. Radovsky completed a questionnaire regarding Hayek's work-related limitations arising from her impairments of fibromyalgia, depression, and chronic neck pain.[3] (Tr. 801.) Hayek's symptoms included multiple tender points, nonrestorative sleep, chronic fatigue, morning stiffness and muscle weakness, headaches, subjective swelling, irritable bowel syndrome, vestibular dysfunction, TMJ, numbness and tingling, Raynaud's phenomenon, dysmenorrhea, breathlessness, anxiety, depression, hypothyroidism, and carpal tunnel syndrome. ( Id. ) Dr. Radovsky opined that Hayek was incapable of even low-stress jobs. (Tr. 802.) She opined that Hayek could walk five blocks without pain, stand for half an hour, sit and stand less than two hours in a workday, and she needed hourly breaks to lie down for five to ten minutes. (Tr. 803.) Furthermore, Hayek could rarely carry objects weighing less than ten pounds, rarely stoop or climb stairs, never look up, and rarely look down, turn her head or hold her head in a static position, and she could use her hands for manipulation only 5% of the workday. ( Id. ) Finally, Dr. Radovsky opined that Hayek would probably miss more than four days of work per month. (Tr. 804.)

Hayek underwent a cervical radiofrequency neurotomy[4] on August 9, 2007, with good relief. (Tr. 537.) When her symptoms returned in May 2008, she repeated the procedure. (Tr. 595.) In February 2008, Hayek's pain was moderate but constant. (Tr. 540.) She also had to stop taking Cymbalta because it was not covered by insurance. ( Id. ) Her cervical range of motion was restricted in all ranges due to pain. ( Id. ) She was able to get up from sitting to standing without difficulty and walked with a normal gait. ( Id. ) She was referred for ...

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