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Gerow v. Colvin

United States District Court, D. Utah

December 19, 2016

ANDREW GEROW, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM DECISION AND ORDER

          Evelyn J. Furse United States Magistrate Judge

         All parties in this case have consented to having United States Magistrate Evelyn J. Furse conduct all proceeding this this case, including entry of final judgment, with appeal to the United States Court of Appeals for the Tenth Circuit. (See 28 U.S.C. § 636 (c); F.R.C.P. 73; Docket (“Dkt”) 15). Plaintiff, Andrew Gerow, (“Mr. Gerow”) appeals the Commissioner of Social Security's decision denying his claim for Disability Insurance Benefits under Title II of the Social Security Act (the Act), 42 U.S.C.§§401-433, as well as, Supplemental Security Income, 42 U.S.C. §§1381-1383f. (Dkt. 3). Having considered the parties' briefs, the administrative record, the arguments of counsel, and the relevant law, the Court REVERSES and REMANDS the Commissioner's decision for further consideration.

         BACKGROUND

         Mr. Gerow filed an application for Disability Insurance Benefits (“DIB”), as well as, Supplemental Security Income (“SSI”) on October 9, 2014, alleging disability beginning June 1, 2003. (A.R. 182-188, 189-197). Mr. Gerow's claim was initially denied on January 16, 2015, and upon reconsideration on April 30, 2015. (A.R. 75-76, 117-118). Thereafter, Mr. Gerow timely requested a hearing before an Administrative Law Judge (“ALJ”) on May 14, 2015. (A.R. 135-137).

         A hearing was held on August 15, 2015 in St. George, Utah before Administrative Law Judge, Christopher R. Daniels. (A.R. 27-44). At the hearing, Mr. Gerow's onset date was amended to December 31, 2008. (A.R. 12). The ALJ issued a decision finding Mr. Gerow not disabled on August 31, 2015. (A.R. 7-26). The Appeals Council denied Mr. Gerow's request for review on November 20, 2015. (A.R. 1-3). This Appeals Council denial was the final administrative decision of the Commissioner of Social Security in this case. Thus, the ALJ decision stands as the final decision of the Commissioner.

         Mr. Gerow brought this action to appeal the Commissioner's decision pursuant to 24 U.S.C. § 405(g), which provides for judicial review of the defendant's final decision.

         A. Factual History

         Mr. Gerow is treated by Dr. Stephen Clark. Dr. Clark diagnosed chronic back pain and arthritis. (A.R. 304, 325). He prescribed methadone for Mr. Gerow's physical pain. (A.R. 298). Mr. Gerow has depression and anxiety that is treated with medication. (A.R. 298, 301). In 2009, Dr. Clark noted that Mr. Gerow was under his care for depression, chronic pain, and abnormal liver function tests. (A.R. 319).

         During this time, Mr. Gerow was also seen for issues with his prostate and urination. (A.R. 320, 322, 325). Imaging studies show small cysts on his kidneys. (A.R. 331). X-rays of Mr. Gerow's knees show mild to moderate degenerative arthropathic changes. (A.R. 353). X-rays of the lumbar spine show mild scoliosis and spondylitic changes manifested as endplate sclerosis, marginal spurring, and lower lumbar fact arthropathy. (A.R. 354). Due to his chronic pain, Mr. Gerow was referred to a sports medicine specialist who diagnosed a cramping syndrome. (A.R. 334-335).

         In May 2015, Dr. Clark noted Mr. Gerow was hearing voices. (A.R. 430). His chronic headaches were worsening and he was experiencing vertigo. (A.R. 430). He had increased urinary frequency and chronic abdominal pain. (A.R. 430).

         Mr. Gerow was seen at Southwest Mental Health for counseling. (A.R. 436). He was diagnosed with depressive disorder and a psychotic disorder. (A.R. 436). He noted side-effects of increased appetite and somnolence with his medications. (A.R. 436, 445).

         In June 2015, Mr. Gerow was reporting daily headaches, depression and anxiety, urinary frequency, chronic pain of the legs and back, abdominal pain, and vertigo. (A.R. 427).

         A physical consultative exam was performed by Dr. Joseph Nelson in September 2012. (A.R. 346). Dr. Nelson opined that Mr. Gerow could perform up to light duty work. (A.R. 351).

         Dr. Clark filled out a residual functional capacity form in 2014. (A.R. 369). He diagnosed chronic low back pain and knee pain supported by x-rays. (A.R. 363). He noted digestive system issues and abdominal pain. (A.R. 365, 370). He stated Mr. Gerow has chronic headaches and fatigue. (A.R. 370). Dr. Clark diagnosed mental disorders including anxiety, depression, delusions, paranoia, panic disorder, and suicidal ideation. (A.R. 367). These cause Mr. Gerow to be withdrawn and have mood swings. (A.R. 367). Dr. Clark noted that a spinal MRI and CT scan of the brain were recommended but Mr. Gerow does not have the financial means to obtain this testing. ...


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