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Brown v. Colvin

United States District Court, D. Colorado

May 20, 2014

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


R. BROOKE JACKSON, District Judge.

This matter is before the Court on review of the Commissioner's decision denying plaintiff Linda Brown's application for disability insurance benefits pursuant to Title II of the Social Security Act. Jurisdiction is proper under 42 U.S.C. § 405(g).


This appeal is based upon the administrative record and briefs submitted by the parties. In reviewing a final decision by the Commissioner, the role of the district court is to examine the record and determine whether it "contains substantial evidence to support the [Commissioner's] decision and whether the [Commissioner] applied the correct legal standards." Rickets v. Apfel, 16 F.Supp.2d 1280, 1287 (D. Colo. 1998). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010) (citations omitted). Evidence is not substantial if it "constitutes mere conclusion." Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992).

The Court "may neither reweigh the evidence nor substitute [its] judgment for that of the agency." Harper v. Colvin, 528 F.Appx. 887, 890 (10th Cir. 2013) (citations omitted). Thus, although some evidence could support contrary findings, the Court "may not displace the agency's choice between two fairly conflicting views, " even if the Court might "have made a different choice had the matter been before it de novo." Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007). However, the Court must "meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met." Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (citations omitted).

Upon review, the district court "shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 45 U.S.C. § 405(g).


Ms. Brown first applied for disability insurance benefits on December 21, 2010. She claimed inability to work since her alleged onset date of December 21, 2010 due to brain and nerve damage, fatigue, and blurry vision in her left eye. Ms. Brown continues to remain insured through December 31, 2014. The Commissioner denied Ms. Brown's application on March 2, 2011. Ms. Brown then requested a hearing before an administrative law judge (ALJ), and the ALJ conducted a hearing on June 11, 2012. On July 5, 2012, ALJ James A. Wendland issued an opinion denying benefits. The Appeals Council denied Ms. Brown's request for review on July 29, 2013. Thereafter, Ms. Brown filed a timely appeal with this Court.


Ms. Brown was involved in a motor vehicle accident in June 2008. She was immediately treated in the ER for a laceration on her head but was discharged the same day. Two months later Ms. Brown began reporting daily headaches. At that time her doctor opined that the accident resulted in closed head trauma and possibly a mild cerebral concussion. In January 2009 Ms. Brown was diagnosed with mild traumatic brain injury and was prescribed medication used to treat nerve damage. Ms. Brown currently suffers from traumatic brain injury with cognitive and emotional limitations, anxiety disorder, depressive disorder, disorder of the knees, and obesity. R. 26. Ms. Brown also suffers from headaches, right shoulder and neck strain, and a drooping eyelid. See R. 27. Ms. Brown has been prescribed medications for her depression and concentration issues.

Medical Evidence

On June 14, 2008, Ms. Brown was involved in a motor vehicle accident when another motorist failed to stop at a red light. R. 193-94. She was taken to the emergency room at the University of Colorado Hospital where she was treated for a scalp abrasion, other scrapes and abrasions, and a wrist injury. R. 293-97. She was released the same day. The next day Ms. Brown returned to work, but she was advised by her boss to return to the emergency room after complaining of feeling ill and suffering from a headache. A CAT scan of the brain was done, and she was told she had "abnormal blood vessels." See R. 260.[1]

On August 26, 2008, Ms. Brown sought a neurological evaluation of "rather significant immobilizing headaches" that were occurring two to three times a day and which were so bad they would awaken her from sleep some nights. R. 259-60. The headaches "hit suddenly, very sharp, intense, knifelike, and last around 1-2 minutes and rarely up to five minutes." R. 260. Notably, they were located in the same spot where she suffered the scalp laceration. Id. The neurologist, Bennett Machanic, M.D., diagnosed Ms. Brown with having suffered a closed head trauma and possible mild cerebral concussion as a result of her motor vehicle accident. R. 261. He described her headaches as "posttraumatic" and as a "classical ice pick headache." R. 262.

On December 4, 2008 Ms. Brown underwent an MRI. The MRI resulted in the following impression:

Marked burden of white matter disease. The finding is nonspecific. Differential diagnosis includes microvascular ischemia associated with diabetes, hypertension, and migraines. Lyme disease, sarcoidosis, and other granulomatous diseases could have this appearance. Vasculitis could cause this appearance. Demyelination such as multiple sclerosis could cause this appearance although the distribution of lesions is not typical. An MRI with contrast is recommended to see if there is associated enhancement.

R. 286. In January 2009 Christopher J. Centeno, M.D. diagnosed Ms. Brown with mild traumatic brain injury and prescribed her Lyrica. R. 279.

In February 2009 Ms. Brown presented to the Brain and Behavior Clinic for a neuropsychological consultation with Laura M. Rieffel, Ph.D. R. 280-85. Ms. Brown reported headaches, personality changes (increased mood swings), symptoms of depression, and cognitive difficulties (such as slow speed of information processing, memory difficulties, attention and concentration problems, distractibility, mental confusion, verbal comprehension difficulties, and slowed decisionmaking abilities.) R. 281-82. Notably, her headaches had become less frequent since she first saw Dr. Machanic. R. 282. During the consultation, Ms. Brown reported that she was then working 32 hours per week as a Certified Nursing Assistant ("CNA") at Vista Village Assisted Living, where she had been working for about two years. R. 283. She noted that she had decreased her work hours from full time (40 hours per week) in January 2009 because of her medical problems. Id. Dr. Rieffel diagnosed Ms. Brown with post-traumatic stress disorder with depression and post concussive syndrome. R. 284. In March 2009, Dr. Rieffel administered neuropsychological testing. See R. 318-57. The results showed that Ms. Brown had a verbal IQ of 87, a performance IQ of 91, and a full scale IQ of 88. See R. 380.

Ms. Brown also began seeing Edwin Healey, M.D., in March 2009. Dr. Healey is Board Certified in Occupational Medicine/Neurology. See R. 373. Ms. Brown was referred to Dr. Healey by her attorney for a second opinion regarding the injuries she sustained in the June 2008 motor vehicle accident. R. 365. Dr. Healey met with Ms. Brown and also reviewed her medical records before diagnosing her. Id. During the consultation, Ms. Brown reported severe headaches ("left parasagittal, frontal sharp, shooting, stabbing and electric-like pains") that occur two to three times per day, and which occasionally wake her up at night. R. 369. She also reported problems with concentration and memory, noting that she had twice gotten lost in her neighborhood and had to call her mother for help to return home; that at work she feels her memory and concentration are not good enough for her to pass out medications; and that at work she has on occasion not provided proper care to some of the nursing home patients either because she forgot what she was doing or she became distracted. R. 369. Ms. Brown also told Dr. Healey that she had stopped doing the normal household cooking and cleaning activities that she used to perform. R. 370. Overall, Ms. Brown stated that her pain along with her cognitive problems and depression interfere with her general activity. Id. In particular, they interfere with her relationships with others, sleep, and her enjoyment of life. Id. Finally, Ms. Brown said that she had experienced a significant change in her ability to read and understand what she reads since the accident. Id.

Dr. Healey diagnosed Ms. Brown with several conditions, including (1) left supraorbital nerve post-traumatic neuropathic pain secondary to contusion and scalp laceration, with ongoing chronic, intermittent daily headaches, not responsive to Lyrica; (2) history of post-concussive syndrome, with emotional changes including anxiety, irritability, and problems with concentration, memory, and attention; (3) depression not otherwise specified secondary to mild traumatic brain injury; and (4) abnormal MRI with microvascular changes. R. 372. Dr. Healey opined that the abnormal MRI was probably not related to the motor vehicle accident. Id. He felt that it might be due to a genetic disorder of the cerebral vasculature, termed CADASIL (Cerebral Autosomal Dominant Arteriopathy with Subcortical Infarcts and Leukoencephalopathy), but added that other causes of the "marked burden of white matter disease" might be Lyme disease, sarcoidosis, other granulomatous diseases and vasculitis as well as demyelinating disease, as mentioned in the December 2008 MRI findings. Id. Dr. Healey made a number of recommendations, including that Ms. Brown see a neurologist for further evaluation. R. 373. However, Ms. Brown was unable to afford the copay.

In June 2009, Ms. Brown began psychotherapy with Jennifer Steinman, MA, LPC, through the Brain and Behavior Clinic. R. 401. At that time, Ms. Steinman assessed Ms. Brown with a Global Assessment of Functioning ("GAF")[2] score of 60 as well as major depressive disorder (single episode, moderate) and post-traumatic stress syndrome. R. 402. By the end of 2009 Ms. Brown had reported improvement with her emotional symptoms, which she attributed to her use of Prozac. R. 420-24. On December 21, 2009 Ms. Brown concluded that her depression and cognitive symptoms had improved such that she no longer needed therapy. R. 424. Further, on December 30, 2009 Dr. Healey assessed Ms. Brown as having stable neurocognitive dysfunction and improving depression. R. 471.

In May 2010 Dr. Healey performed the Folstein Mini Mental Status Examination[3] on Ms. Brown. He found that she had marked difficulty with serial seven subtractions but was able to spell the word "world" backwards. R. 382. Ms. Brown was only able to recall one of three words five minutes after she had been asked to remember them. Id. She also had mild difficulty placing numbers on a clock and having the hands indicate 3:40. Id. Overall, Dr. Healey found that Ms. Brown suffered from moderately severe cognitive dysfunction manifested by problems with concentration, memory, and slowed cognitive processing. Id. Dr. Healey noted that Ms. Brown continued "to have marked problems with attention, concentration, memory and cognitive processing." R. 383. He put her on 5mg of Adderall per day to see if it might help her attention and concentration. Id. Dr. Healey also diagnosed Ms. Brown under the AMA Guidelines to the Evaluation of Permanent Impairment, finding that she had a combined impairment for her cognitive dysfunction, depression, and left supraorbital neuralgia of 26%. R. 384. In conclusion, Dr. Healey found that Ms. Brown was "approaching maximal therapeutic benefit." Id.

Ms. Brown's Adderall prescription was increased to 10mg per day in July 2010, pursuant to a follow up appointment. R. 385. Dr. Healey opined that "Ms. Brown's permanent impairment has not changed from [the] May 26, 2010, follow-up evaluation. Ms. Brown continues to demonstrate moderately severe problems with cognition, memory, thinking and attention, although she has had some improvement in attention and concentration with the Adderall." R. 386. He added, "I continue to have major concerns as to whether or not Ms. Brown will be able to work in the capacity as a CNA in the future, given her permanent cognitive dysfunction." Id.

By October 2010 Ms. Brown was reporting that her symptoms remained largely unchanged-she continued to have problems with memory, concentration, and attention-but that her more recent use of Adderall had "definitely improved these symptoms." R. 374. By this time, Ms. Brown had to cut back to three days (24 hours) per week at her job "because of increased mental fatigue." Id. Ms. Brown reported that her major concern was the difficulty she faced in performing her job, noting that she had already been demoted. Id. Dr. Healey concluded, "I am also very concerned as to whether M[s]. Brown, if she were to lose her current job because of poor cognitive performance, would be able to return to any type of work and, thus, be permanently and totally disabled, which, in my opinion, will probably occur in the near future. She will require her current medications i.e. Adderall and Prozac indefinitely." R. 376.

In November 2010 Ms. Brown underwent a follow-up interview by the Brain and Behavior Clinic. R. 388. Stephen Schmitz, Ph.D., found that Ms. Brown's "emotional functioning had improved with her medication and the psychotherapy she had completed." Id. Nevertheless, Dr. Schmitz concluded that Ms. Brown was "continuing to experience the functional neurocognitive effects of a traumatic brain injury experienced in the June 14, 2008 automobile accident." R. 389. He further opined that it was "likely that Ms. Brown has reached MMI [(Maximum Medical Improvement)] with respect to her neurocognitive functioning. She should continue to take her medications and utilize as many compensatory and limit setting strategies as she can in order to maintain her current job. Should she lose that position she would likely be at a significant disadvantage in being able to compete with others in jobs for which she is otherwise qualified." Id.

On January 31, 2011, Dr. Healey wrote a letter expressing his continued opinion "that Ms. Brown has substantial cognitive deficits related to her motor vehicle accident which severely impact on her ability to work or live independently." R. 427.

On March 1, 2011 the State agency mental health medical consultant Mark Berkowitz, Psy.D., evaluated Ms. Brown's claim and determined that her condition did not meet or medically equal any of the mental health Listings, specifically Listings 12.02 and 12.04. R. 90-93. Each Listing has three alphabetical criteria. Dr. Berkowitz found that Ms. Brown met the "paragraph A" criteria for both Listings but did not meet the criteria of paragraphs B or C. R. 90. In particular, Dr. Berkowitz found that "paragraph B" was not satisfied because Ms. Brown did not show marked restrictions in two of the following three categories, or in one category coupled with repeated episodes of decompensation: (1) restriction of activities of daily living (moderate); (2) difficulties in maintaining social functioning (mild); and (3) difficulties in maintaining concentration, persistence, or pace (moderate). Id. Dr. Berkowitz explained that Ms. Brown was moderately limited in her ability to understand, remember, and carry out detailed instructions, maintain attention for extended periods of time, and sustain an ordinary routine without special supervision. R. 93. He added that she was capable of engaging in work needing little or no judgment, involving simple duties which can be learned on the job in a short period of time (up to one month). Id.

On August 17, 2011 Ms. Brown reported to the emergency room complaining that a week earlier she had experienced pain that "felt like a brick was across the top of her head pushing down." R. 448. She described the pain as "the worst she has had" and explained that her doctor had requested that she go to the emergency room for imaging. Id. The hospital performed an MRI to make sure there was no sign of an aneurysm. R. 450-51. The impression from the MRI was the following: Extensive supratentorial and to a lesser extent infratentorial white matter T2 hyperintensity, a nonspecific appearance; otherwise normal intracranial MRI, with no aneurysms or vascular stenosis demonstrated. R. 459. Basically, the MRI showed white matter disease but no aneurysm. R. 451. The ER doctor discussed the situation with Dr. Healey, who asked that Ms. Brown stop taking her Adderall. R. 451.

On April 25, 2012 Dr. Healey filled out a report entitled Medical Opinion Re: Ability to Do Work-Related Activities (Mental). R. 476. He marked Ms. Brown as "severely limited"- having noticeable difficulty from 11 to 20 percent of the workday or work week-in the following areas: (1) ability to deal with normal work stress; (2) ability to understand and remember detailed instructions; (3) ability to carry out detailed instructions; and (4) ability to deal with stress of semi-skilled and skilled work. R. 476-77. He noted that Ms. Brown suffered from degenerative vascular brain disease that had been permanently aggravated by the traumatic brain injury she suffered in her auto accident. R. 477. Finally, he opined that Ms. Brown's impairments would cause her to be absent from work approximately four days per month. Id.

On March 12, 2012 Ms. Brown met with Kelle Holgorsen, PA, to establish care. R. 473. She reported that she could no longer see Dr. Healey because her insurance had run out. Id. No diagnoses were made at this time. See id. at 473-74. A month later Ms. Brown returned for a physical exam. R. 482. No diagnoses relevant to this appeal were made at this appointment. See R. 482-84.

Other Evidence

The administrative record includes letters from Ms. Brown's employer, a friend, a former co-worker, and her mother each discussing the ways in which her functional and ...

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