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Burke v. Berryhill

United States District Court, D. Idaho

March 28, 2019

KAYDEN C. BURKE, Petitioner,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Respondent.


          Honorable Candy W. Dale, United States Magistrate Judge.


         Currently pending before the Court is Kayden Burke's Petition for Review of the Respondent's denial of social security benefits, filed on February 8, 2018. (Dkt. 1.) The Court has reviewed the Petition for Review and the Answer, the parties' memoranda, and the administrative record (AR), and for the reasons that follow, will remand the decision of the Commissioner.


         In a determination dated July 7, 2011, Petitioner was found disabled as of June 2, 2011. Petitioner received disability insurance benefits beginning July 7, 2011. On September 22, 2014, it was determined, during an eligibility review, that Petitioner was no longer disabled as of September 1, 2014. His disability benefits ceased in September of 2014. (AR 26, 45.) On October 24, 2014, Petitioner requested reconsideration. The request for reconsideration was denied and a hearing was conducted on May 23, 2016, before Administrative Law Judge (ALJ) Stephen Marchioro. After considering testimony from Petitioner and a vocational expert, ALJ Marchioro issued a decision on June 27, 2016, finding Petitioner's disability under Section 1614(a)(3)(A) of the Social Security Act ended on September 1, 2014, and the Petitioner had not become disabled again since that date. (AR 29.)

         Petitioner timely requested review by the Appeals Council on July 28, 2016. (AR 182.) Petitioner submitted additional medical records for consideration by the Appeals Council on January 18, 2017, March 3, 2017, and July 10, 2017, covering the period of July 3, 2015, through June 5, 2017. (Exhibits 36F - 40F, AR 1608 - 1674.)[1] The Appeals Council considered the additional evidence, but found that the evidence did not provide a basis for changing the ALJ's decision. The Appeals Council denied Petitioner's request for review on December 15, 2017. (AR 1-3.) Petitioner appealed this final decision to the Court. The Court has jurisdiction to review the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012).

         Petitioner was born on June 1, 1993; he was found to be disabled at age fourteen, after having been diagnosed with systemic lupus erythematosus, chronic sinusitis, osteoporosis, obesity, cardiomyopathy, and bilateral osteonecrosis of the ankles requiring a surgical repair of the right ankle. Imaging of both ankles and his wrists on November 8, 2010, and again on May 23, 2011, revealed bilateral osteonecrosis of the ankles. (AR 80.) At that time, benefits were awarded on the basis that he met Listing 1.02A (Major Dysfunction of a Joint) because he was unable to ambulate effectively. Petitioner was non-weight bearing, and required a wheelchair due to bilateral osteonecrosis.

         Petitioner graduated from high school despite medical issues preventing his regular attendance. (AR 45-46.) During his senior year of high school, Petitioner estimated he was absent for ninety percent of the school year. (AR 62, 1534.) He has no past relevant work, and has never obtained employment. (AR 47.) Petitioner began a vocational rehabilitation program, but he testified he was unable to complete the program because of health reasons. (AR 47.)

         In 2015, Petitioner began preparing for a two-year mission for his church. (AR 47; 1597.) Prior to leaving Idaho, Petitioner had a physical examination on May 4, 2015. (AR 1503.) His treating physician, Joseph Waters, M.D., summarized Petitioner's medical history, noting that his lupus was currently controlled with CellCept. (AR 1503.) His past medical history was remarkable for a concurrent hypercoagulable state with deep vein thrombosis in his leg and a venous thrombosis of the jugular vein. Petitioner is chronically anticoagulated with Coumadin. Dr. Waters noted also that, over the past year, but prior to the May 4, 2015 examination, Petitioner developed papilledema and was found to have increased intracranial pressure associated with a venous sinus thrombosis. Petitioner was asymptomatic after undergoing treatment with Diamox. (AR 1503.) Petitioner also had a history of mild hypertrophic cardiomyopathy, but with treatment, he was currently asymptomatic.

         Dr. Waters noted also that Petitioner's prior medical history included a diagnosis of avascular necrosis of the talar dome, and after undergoing arthroscopic debridement and a bone graft “several years ago, ” he was left with chronic right ankle pain. (AR 1503.) Despite the ankle pain, Petitioner could now walk up to a mile continuously without too much of an increase in pain. (AR 1504.) Dr. Waters was of the opinion that, despite Petitioner's multiple chronic medical problems, he was stable enough at that time to perform the duties required for a mission, so long as he did not travel outside of the United States and he had access to medical care. (AR 1505.)

         Petitioner sprained his right ankle on July 2, 2015. (AR 1630.) Imaging studies dated July 3, 2015, did not reveal a fracture, and upon examination, Dr. Waters noted that Petitioner's injuries were limited to soft tissue sprain and strain. (AR 1630). Dr. Waters did note, however, that Petitioner's right ankle had limited range of motion, suggesting development of an auto fusion. (AR 1630.)

         In September of 2015, Petitioner embarked on a two-year mission in Kansas City, Missouri. (AR 47; 1597.) As an accommodation, the church allowed him to use a car to perform his missionary duties. (AR 48.) Petitioner testified at the hearing that his schedule was rigorous, requiring 14 to 16 hours a day of missionary work or other activities. (AR 47-48.) Petitioner stated that he would start his day at 6:30 a.m. by getting ready, and began studies at 8:00 a.m. for two hours. (AR 48.) After completing his studies, he would do missionary work, which meant visiting church members' and other people's homes. (AR 48.) He was required to maintain this schedule for five days each week. (AR 48.) On Sundays, he attended church services, and Mondays were preparation days. (AR 48.)

         Petitioner testified that, during his mission, his attendance was unreliable, and he had instances when he was not able to function due to his various medical conditions. (AR 53, 60.) At the beginning of his mission, he estimated he was absent once every two weeks because of his chronic sinusitis. (AR 61.) When his sinusitis progressed, he began missing three days or more each week of missionary work. (AR 61.) A review of his medical records establishes multiple visits to health care providers for recurrent infections, detailed below.

         Upon arriving in Kansas City, Petitioner established care at the Mosaic Life Care Clinic on September 17, 2015. (AR 1582.) Drs. James Walker and Christopher Trimble provided medical care to him. Because of recurring sinusitis, Petitioner was initially placed on antibiotics in November of 2015. (AR 1548.) On December 7, 2015, at a follow-up appointment for his sinusitis, it was noted that a prior CT scan showed pansinusitis and it was recommended he have sinus surgery. (AR 1553.) Petitioner presented with a cough, and another round of antibiotics was started. (AR 1553.) Thereafter, Petitioner was diagnosed with pneumonia on December 11, 2015. (AR 1576.) Dr. Walker did not believe hospitalization was necessary, and antibiotics were started again. (AR 1578.)

         On December 17, 2015, Petitioner sought follow up care, stating he felt improvement from the pneumonia symptoms, but felt his nasal congestion, cough, and postnasal drainage were worse. (AR 1563.) On December 22, 2015, Petitioner sought follow-up care for pneumonia, in addition to his chronic sinus congestion and infection symptoms. (AR 1557.) Symptoms included a persistent, productive cough. (AR 1561.) Because his pneumonia symptoms appeared to be improving clinically, Petitioner was not hospitalized, and he was treated with prednisone. (AR 1559.)

         On January 28, 2016, Petitioner complained about a several day history of increasing sinus congestion, pressure, chest congestion, and cough. (AR 1568.) His treating physician noted problems with recurrent infection, and another round of antibiotics was started. (AR 1570.) On March 10, 2016, his treating physician noted Petitioner's recurring infection was not getting better. (AR 1548.) Another round of antibiotics was started. (AR 1550.) On March 18, 2016, Petitioner started feeling mildly better, but stated to his physician that he was fatigued. (AR 1572.) Dr. Trimble noted that Petitioner had been on continuous antibiotics for the last six months, and he recommended that Petitioner return home for further treatment, which included a recommendation for surgery to treat his chronic sinusitis. (AR 61, 1574.) Because of continued problems with recurrent sinusitis, Petitioner was sent home to Idaho from Kansas City in late March of 2016. (AR 47.) Petitioner's two-year mission ended after seven months, and he did not resume his mission.

         Upon returning to Idaho, Petitioner continued to complain of persistent fatigue. (AR 1592.) At an office visit with his treating pediatric rheumatologist, Dr. Hersh, on April 4, 2016, Petitioner complained that, upon awakening, his arms felt weak. (AR 1593.) The etiology of Petitioner's fatigue was unclear at that time given his lupus was inactive. (AR 1595.) Dr. Hersh noted that Petitioner complained of persistent fatigue, despite returning home and no longer being subjected to a rigorous schedule. (AR 1592-93.)

         Petitioner followed up with Dr. Waters for his complaints of persistent fatigue on September 26, 2016. (AR 1622.)[2] Petitioner reported that his fatigue had been present since February of 2016, but had worsened over the past four weeks. Petitioner complained of feeling tired all of the time, and wanting to sleep more, along with experiencing a generalized feeling of weakness. (AR 1622.) Dr. Waters noted that Petitioner's neurologist diagnosed him with idiopathic sleep paralysis, to be treated with Lexapro. (AR 1622.) Petitioner reported increased fatigue after starting the Lexapro. Dr. Waters recommended decreasing the dosage of Lexapro, and ordered lab work to determine the cause of Petitioner's fatigue, including testing for C. difficile. (AR 1623.)

         On September 30, 2016, lab results indicated the test for C. difficile was inconclusive, [3] and the doctor's note instructed Petitioner to remain on isolation precautions until a final determination was made. (AR 1612.) Petitioner's final test results for C. difficile infection came back positive on October 2, 2016. (AR 1613.) Dr. Waters noted that the infection was likely the cause of Petitioner's persistent loose stools, and possibly the cause of his fatigue. (AR 1613.) Dr. Waters prescribed a course of antibiotics.

         On December 29, 2016, Dr. Waters noted persistent nasal congestion, ear pain, and postnasal drip, with symptoms persisting for greater than four weeks despite sinus surgery several months ago. (AR 1609.)[4] Petitioner also sought follow up care for symptoms of depression and chronic fatigue. (AR 1607 - 1609.) It was noted that Petitioner expressed increased suicidal ideation, which Dr. Waters believed could be a side effect of the particular antidepressant medication prescribed. (AR 1610.) Accordingly, Dr. Waters tapered the antidepressant medication, with plans to begin a different antidepressant. (AR 1610.)

         Dr. Hersh provided a physician source statement to the Commissioner on January 4, 2017, indicating that Petitioner had been a patient of hers since 2010. She explained that Petitioner's lupus has caused life threatening complications, which included a pulmonary alveolar hemorrhage and widespread blood clotting, as well as clots in his brain. (AR 1632.) Dr. Hersh stated that Petitioner “has recently developed profound fatigue and weakness which impairs his ability to do even simple tasks. He has had an extensive workup as to the cause of this and the evaluation is on going. Unfortunately at this point it is ...

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