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Paice v. Acting Commissioner of Social Security

United States District Court, D. Utah

September 27, 2017



          Evelyn J.Furse United States Magistrate Judge

         All parties in this case have consented to having United States Magistrate Judge Evelyn J. Furse conduct all proceedings in 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); See also F.R.C.P. 73; (ECF No. 13). Plaintiff, David Paice, Surviving Spouse of Latrisha Paice (“Ms. Paice”), appeals the Commissioner of Social Security's decision denying her claim for Disability Insurance Benefits under Title II of the Social Security Act (“the Act”) (ECF No. 2). 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.


         Ms. Paice filed an application for Disability and Disability Insurance Benefits on August 27, 2010, alleging disability beginning on December 2, 2005 (See Tr. 16). Ms. Paice's claims were initially denied on January 20, 2011, and again upon reconsideration on February 24, 2011 (Tr. 126, 127). Thereafter, Ms. Paice timely requested a hearing before an Administrative Law Judge (“ALJ”) on February 28, 2011(See Tr. 170-171).

         A hearing was held on March 19, 2012, in Salt Lake City, Utah before an ALJ (Tr. 39-81). The ALJ issued a decision finding Ms. Paice not disabled on April 2, 2012 (See Tr. 130-151). The Appeals Council granted Ms. Paice's request for review and issued an order remanding the case to an administrative law judge on October 31, 2013 (See Tr. 152-156). Among other things, the remand order from the Appeals Council stated that upon remand the ALJ will: “[o]btain supplemental evidence from an appropriate medical expert to clarify the nature, severity, and limiting effects of the claimant's medically determinable mental impairments” (Tr. 154-155).

         A remand hearing was held on March 3, 2014, in Salt Lake City, Utah, before an ALJ (Tr. 82-125). The ALJ issued a decision again finding Ms. Paice not disabled on April 25, 2014 (See Tr. 13-38). Ms. Paice passed away on October 31, 2015 (Tr. 10). On November 27, 2015, Ms. Paice's surviving spouse, David Paice, filed a Notice Regarding Substitution of Party Upon Death of Claimant (Tr. 9). The Appeals Council denied Ms. Paice's request for review on February 19, 2016 (See Tr. 1-5). 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. Paice brought this action to appeal the Commissioner's decision pursuant to 42 U.S.C. § 405(g), which provides for judicial review of the defendant's final decision.

         A. Factual History

         Ms. Paice was diagnosed with fibromyalgia (Tr. 662, 665, 668, 677). She was also treated for insomnia (Tr. 675). In addition, during an abdominal ultrasound performed in July 2009, the doctor observed that Ms. Paice suffered from fatty liver disease (See Tr. 757). Additionally, Ms. Paice also had esophagitis, a hiatal hernia, and gastritis (Tr. 761).

         In July 2010, Ms. Paice saw a neurologist for pain in her face. Ms. Paice told the neurologist that she experienced pressure, heat, and shock-like feelings in her head and neck (See Tr. 623). Ms. Paice also reported that she had pain in her face and experienced tremors in her upper lip and numbness and tingling in her bottom lip and on the left side of her face (See Tr. 623). At this time, it was noted she was experiencing difficulty speaking, swallowing, coordination and balance issues, weakness, sensory changes, headaches, and joint pain and stiffness (Tr. 624). She was eventually diagnosed with trigeminal neuralgia (Tr. 870). An MRI of her brain confirmed that she had white matter changes in her brain (Tr. 625, 644-645, 716). In his write up after completing the MRI and other tests, Ms. Paice's doctor hypothesized that the white matter changes were likely related to “chronic ischemic changes, ” as opposed to demyelinating disease (See Tr. 628). Moreover, her doctor believed that Ms. Paice's headaches, and the ineffectiveness of certain painkillers like Topamax and Pamelor to relieve her pain, were a part of chronic pain syndrome (See Tr. 628). Ms. Paice's headaches were severe enough that despite her consistent use of pain medication she had to go to her doctor or the emergency room for breakthrough pain (Tr. 637, 670, 706, 805, 852, 904, 906, 1010, 1022). She reported that the headaches caused visual changes (Tr. 842). An MRI of her cervical spine showed some disc bulging (Tr. 642).

         Ms. Paice also had cardiac issues (Tr. 646, 649). In February 2010, Ms. Paice complained of chest pain (Tr. 620). An echocardiogram in October 2010 showed impaired relaxation pattern of left ventricle filling and mild mitral valve and tricuspid regurgitation (Tr. 635-636).

         With regard to her mental impairments, the record shows that in March 2006, Ms. Paice reported increased personal stress and had severe symptoms of anxiety and panic attacks (Tr. 991). Ms. Paice underwent a consultative psychological exam. She was diagnosed with pain disorder and adjustment disorder with mixed anxiety and depressed mood (Tr. 772). She was taking medication for her anxiety (Tr. 809). She was given a GAF score of 60, indicating moderate impairment (Tr. 772). The Agency physician opined that she would be moderately limited in her ability 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” (Tr. 797).

         In 2012, Ms. Paice's treating physician, Nelson Astle, M.D., filled out a residual functional capacity assessment (See Tr. 868). Dr. Astle had treated Ms. Paice since 1996 (Tr. 868). He opined that Ms. Paice could walk for 1 hour without interruption for a total of 4 hours of an 8-hour workday and she could lift no more than 5-10 pounds (See Tr. 865). He stated that Ms. Paice would need to rest throughout the day due to fatigue and would miss at least 2-3 days of work each month (Tr. 868). Dr. Astle reiterated in interrogatories that, in his opinion, Ms. Paice had these impairments on or before December 31, 2010 (See Tr. 936).

         B. ...

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