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Carbajal v. Colvin

United States District Court, D. Colorado

September 17, 2014

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


KRISTEN L. MIX, Magistrate Judge.

This matter is before the Court[1] on the Social Security Administrative Record [#10], [2] filed December 2, 2012, in support of Plaintiff's Complaint [#1] seeking review of the decision of Defendant Acting Commissioner of the Social Security Administration ("Defendant" or "Commissioner") denying Plaintiff's claim for supplemental security income benefits. On January 28, 2014, Plaintiff filed an Opening Brief [#14] (the "Brief"). On March 6, 2014, Defendant filed a Response [#17]. On March 19, 2014, Plaintiff filed a Reply [#18]. The Court has jurisdiction to review the Commissioner's final decision under 42 U.S.C. § 405(g). The Court has reviewed the entire case file and the applicable law and is sufficiently advised in the premises. For the reasons set forth below, the Court AFFIRMS the decision of the Commissioner.

I. Background

Plaintiff filed this action on September 3, 2013, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), for judicial review of an unfavorable decision by the Commissioner with respect to Plaintiff's claim for supplemental security income under Title XVI of the Act.

Plaintiff has completed high school. Tr. 184.[3] He has worked as a house painter, an automotive body repair worker, a self-employed entertainment promoter, a liquor store cashier, another cashier/checker, a dishwasher, and a tortilla maker. Tr. 37-38, 185, 207-11. Plaintiff alleges that he was terminated in 2010 from his most recent position as a painter because he arrived late to work, did not complete tasks, and took too long to complete tasks. Tr. 39.

Plaintiff initially claimed an onset of disability on October 31, 2007. Tr. 34, 157. Plaintiff's attorney, however, moved at the hearing before the Administrative Law Judge ("ALJ") to amend Plaintiff's alleged onset of disability to January 12, 2010. Tr. 35. The motion was granted. Tr. 11. Plaintiff was born in 1976 and thus was thirty-three years old on the amended date of the alleged onset of disability. Tr. 157. Some of Plaintiff's asserted medical issues included post-traumatic stress disorder ("PTSD"), major depressive disorder, panic disorder, antisocial personality disorder, sequalae of a gunshot wound to his left forearm, and left leg pain.[4] Tr. 11.

A. Medical History

Before his alleged onset of disability in 2010, Plaintiff did not seek treatment because he did not have medical insurance. Tr. 29. In addition, Plaintiff did not take medication. Tr. 30.

When Plaintiff applied for disability, the State Disability Determination Services referred him to consultative examinations. Tr. 232. Psychologist Richard Madsen, Ph.D. ("Madsen"), saw Plaintiff on May 29, 2008, to evaluate his mental status. Tr. 232. Dr. Madsen noted that Plaintiff was dressed casually and that his grooming and hygiene were adequate. Tr. 232. Dr. Madsen also noted that Plaintiff has a history of drug and alcohol treatment and that Plaintiff began using alcohol at age 15 and illicit drugs at age 10. Tr. 233. Plaintiff stated that he has experienced, among other things, constant pain in his left toe, knee, and shoulder; depression; anxiety; and panic attacks. Tr. 232. In addition, Plaintiff stated that "he has to drink alcohol to sleep[]" and drinks four or five days a week. Tr. 233. Plaintiff further stated that he fights frequently with others, thinks that others talk about him, and "feels bad vibes from" others. Tr. 232. Dr. Madsen noted that Plaintiff's "symptoms of depression include irritability, hypersomnia, withdrawal, crying spells, anxiety, fatigue, sadness, mood swings, poor self-esteem, difficulty concentrating, low tolerance for frustration, decreased libido, decreased motivation, feelings of uselessness." Tr. 232. Dr. Madsen further noted that Plaintiff's "[s]ymptoms of mania include racing thoughts, explosive temper, difficulty completing tasks, excess energy and agitation." Tr. 232. Dr. Madsen stated that Plaintiff has suicidal thoughts and attempted suicide eight years prior. Tr. 232.

On examination, Dr. Madsen found that Plaintiff "is oriented to person, place and time[, ]" and he can "recall the year, the month, the day of the month, the day of the week, and the name of the President." Tr. 233. Plaintiff's "affect is blunted and consistent with a depressed mood, " and his "[t]hought processes are nonpsychotic." Tr. 233. He spoke in a logical and relevant manner, but his "[m]otor behavior and speech were slow." Tr. 233. Dr. Madsen did not find evidence of suicidal or homicidal ideation. Tr. 233.

Dr. Madsen made several findings concerning Plaintiff's ability to count, recall, and perform basic arithmetic. Tr. 233. Plaintiff "could count from 1 by 3's to 40 making one error." Tr. 233. His "[s]hort term memory, as measured by digit span, is average." Tr. 233. He could "recall 3 of 3 objects on immediate recall, and 3 of 3 after 5 minutes;" "his Social Security number, date of birth, age, address, and phone number accurately;" and "6 forward and 4 backward." Tr. 233. "His ability to do arithmetic functions in his head is impaired." Tr. 233. "He was able to calculate the price of 6 objects given the price 1 being.25 cents[] [but] [h]e was unable to do any[] more difficult calculations." Tr. 233.

Dr. Madsen diagnosed Plaintiff with major depression, recurrent moderate; agoraphobia with panic; chronic PTSD; alcohol abuse; and impaired intellectual functioning. Tr. 234. Dr. Madsen gave Plaintiff a Global Assessment of Functioning ("GAF") score of 50, indicating severe symptoms or limitations. Tr. 234; Am. Psychiatric Ass'n, Diagnostic & Statistical Manual 34 (4th ed. text rev. 2000) ("DSM VI").[5] Dr. Madsen explained that Plaintiff "isolates himself at home[]" and "[h]e does not go out much, other than to get his son or go to a doctor's appointment." Tr. 235. Dr. Madsen further noted that Plaintiff's "girlfriend [does] most of the work around the house[]" and that "[d]epression interferes with his concentration, motivational levels and energy level." Tr. 235. Dr. Madsen opined that Plaintiff "should be able to handle his own funds." Tr. 235. Dr. Madsen concluded that Plaintiff "would have difficulty maintaining a regular work schedule, focusing and concentrating on work, relating to peers, coworkers, supervisors, and the general public." Tr. 235.

On June 21, 2008, Troy Glaser, D.O. ("Glaser"), examined Plaintiff. Tr. 237. Plaintiff claimed that "he drinks 8-12 beers on a weekend." Tr. 238. Plaintiff also claimed that he does not use illicit drugs. Tr. 238. Dr. Glaser diagnosed Plaintiff with left arm and leg pain and anxiety. Tr. 240. Dr. Glaser noted that Plaintiff's left arm pain might "affect [Plaintiff's] grip a little bit but his examination was not consistent for where his gunshot wound was." Tr. 240. Dr. Glaser found that Plaintiff had no restrictions on his ability to stand, walk, or sit during an eight-hour workday. Tr. 240. Dr. Glaser recommended that Plaintiff be restricted to lifting with his left hand "10 pounds frequently and maybe 20 pounds occasionally." Tr. 240. Dr. Glaser assessed that Plaintiff had no postural or manipulative limitations. Tr. 241. Dr. Glaser noted that Plaintiff's ability to perform would be limited if he were "around a lot of people with his anxiety." Tr. 241.

On April 24, 2009, David R. Benson, Ph.D. ("Benson"), examined Plaintiff. Tr. 242. Dr. Benson reviewed the report concerning Dr. Madsen's May 29, 2008 examination of Plaintiff. Tr. 242. Dr. Benson noted that Plaintiff "was appropriate and respectful and casually dressed." Tr. 242. Although Plaintiff "rarely leaves the house, " he stated that he took his son to school in the morning. Tr. 244. Plaintiff stated that "he has difficulty doing quiet things or sitting quietly and spends a lot of time on the computer with various activities." Tr. 244. Dr. Benson noted that Plaintiff can "carry out all activities of daily living." Tr. 244. Plaintiff stated that he cooks "with the assistance of his girlfriend who is frequently there." Tr. 244. Plaintiff reported that "he drinks between 6 to 12 beers in a day now" and "has been drinking daily for 5 or 6 years." Tr. 244.

On examination, Dr. Benson found that Plaintiff could recall three words initially but not after minutes had elapsed, could recall four digits forward and backwards, and could spell "house" backwards. Tr. 245. Plaintiff told Dr. Benson that "he could not do serial 7's or 3's." Tr. 245. Dr. Benson diagnosed Plaintiff with PTSD; panic disorder with agoraphobia; alcohol dependency; major depression, recurrent; and antisocial personality traits. Tr. 245. Dr. Benson gave Plaintiff a GAF score of 45. Dr. Benson found that Plaintiff "has a limited ability to understand and remember detailed instructions;" "a limited ability to perform activities within a schedule and maintain regular attendance and be punctual within a customary tolerance;" and "a markedly limited ability to interact appropriately with the general public." Tr. 246. Dr. Benson "strongly recommended" that Plaintiff seek treatment. Tr. 246.

On May 18, 2010, Brett Valette, Ph.D. ("Valette"), examined Plaintiff. Tr. 254. Dr. Valette reviewed the reports of Dr. Madsen and Dr. Benson. Tr. 256. Plaintiff reported to Dr. Valette that after he takes his son to school, he will watch television, nap, or go to the residence of his girlfriend. Tr. 254. In the evening, Plaintiff stated that he spends time with his son. Tr. 254. In addition, Plaintiff said that he socializes with friends. Tr. 255. Plaintiff could dress himself, bathe himself, do laundry, vacuum, cook, handle his finances, and drive. Tr. 254-55. Plaintiff asserted that "he has not had any alcohol since September 2009." Tr. 255. Plaintiff reported that "he has not done any drugs since he was 12 years old." Tr. 255. In addition Plaintiff reported that "[h]e has never been in a psychiatric hospital[];" "[h]e does not have a physician[];" and "[h]e is not in any therapy." Tr. 255.

Dr. Valette examined Plaintiff and found him to be cooperative but vague in his responses. Tr. 255. Dr. Valette expressed concern "about [Plaintiff's] effort on the testing... [and] the information he gives [Dr. Valette]." Tr. 255. Plaintiff could recall three items, and "[a]fter five minutes, he could recall two items." Tr. 255. Plaintiff could count by 3 but not by 7. Tr. 255. Dr. Valette diagnosed Plaintiff with PTSD, major depression, antisocial personality disorder, knee pain, and left arm pain. Tr. 256. Dr. Valette gave Plaintiff a GAF score range of 60-65. Tr. 256.

On June 7, 2010, Mark Suyeishi, Psy.D ("Suyeishi"), reviewed Plaintiff's medical record and evaluated the evidence therein. Tr. 56-64. Dr. Suyeishi completed a Psychiatric Review Technique (PRT) and found that Plaintiff's restriction of activities of daily living was mild; his difficulties in maintaining social functioning were moderate; his difficulties in maintaining concentration, persistence or pace were mild; and he had no repeated episodes of extended-duration decompensation. Tr. 60. Dr. Suyeishi also completed a Physical Residual Functional Capacity Assessment and found, among other things, that Plaintiff had limitations with regard to his social interactions because his "alleged PTSD has created more withdrawn/isolative behaviors; he "has the mental ability to do work not involving significant complexity or judgement [sic];" and he "can do work requiring up to 3 months time to learn techniques, acquire information and develop facility needed for an average job performance." Tr. 62-64. Dr. Suyeishi concluded that "[u]nless [Plaintiff's] anxiety lessens he should have limited to no interaction with the public." Tr. 64.

On September 13, 2011, Cindy Stegman, FNP, examined Plaintiff at Pueblo Community Health Center ("Pueblo Health"). Tr. 270-272. Plaintiff reported that he drinks six beers a day. Tr. 271. Ms. Stegman noted that he "has self tattooed himself quite a bit in his garage...." Tr. 271. On examination, Ms. Stegman expressed concern "about possible hepatic involvement, both from the multiple tattoos as well as from his 6-pack of alcohol a day." Tr. 271.

On November 11, 2011, Dr. Madsen examined Plaintiff a second time at the request of Plaintiff's attorney. Tr. 261. First, Dr. Madsen conducted a psychological evaluation of Plaintiff. Tr. 261-65. Dr. Madsen reviewed his previous report and Dr. Benson's report. Tr. 263. Plaintiff reported that he lived with his 14-year-old son, and that his son helped him. Tr. 261-62. Plaintiff "drives a car, does self care, prepares meals, does laundry, [and] grocery shopping." Tr. 262. Plaintiff stated that "he stays pretty much to himself;" "[d]oes not have many friends;" and "[d]oes not go out to do much." Tr. 261. Plaintiff asserted that he uses alcohol and "has not used any drugs for several years." Tr. 263. On examination, Dr. Madsen found that Plaintiff's "[a]ffect is consistent with an anxious depressed mood[]" and that he has nonpsychotic thought processes. Tr. 263. Plaintiff "appears restless[]" and he "[h]as difficultly sitting still." Tr. 263. He "was unable to count from 1 by 3's to 40 accurately, making 2 errors." Tr. 263. "He was able to recall 4 of 5 objects on immediate recall and 3 of 5 after 5 minutes." Tr. 263. Dr. Madsen diagnosed Plaintiff with major depressive disorder, recurrent moderate; chronic PTSD; panic disorder with agoraphobia; and alcohol abuse, episodic. Tr. 264. Dr. Madsen gave Plaintiff a GAF score of 50. Tr. 264.

Second, Dr. Madsen completed a Residual Functional Capacity Evaluation (Mental) concerning Plaintiff. Tr. 266.-67. In this evaluation, Dr. Madsen determined Plaintiff's degree of limitation in his understanding and memory; sustained concentration and persistence; social interaction; and adaptation. Tr. 266-67. He opined that Plaintiff has a marked degree of limitation with regard to eight of the twenty categories of limitation, a moderate degree of limitation with regard to ten of the categories, and a slight degree of limitation with regard to two of the categories. Tr. 266-67.

On December 22, 2011, Ms. Stegman examined Plaintiff a second time at Pueblo Health. Tr. 268-72. Plaintiff reported that he was experiencing increased left knee pain along with swelling and instability, as well as increased anxiety. Tr. 269. Ms. Stegman prescribed him Zoloft and Xanax for his anxiety disorder and scheduled a follow-up examination for his anxiety disorder. Tr. 269. Ms. Stegman referred him to Pueblo Health's mental health department so that he could receive counseling for his PTSD. Tr. 269.

On two separate occasions in early 2012, Plaintiff presented at Pueblo Health with hives and a sore on his left arm.[6] Tr. 273-81. On January 13, 2012, Matthew E. Bowles, M.D., examined and treated Plaintiff's sore. Tr. 280. On February 12, 2012, Robert R. Westeremeyer, M.D., examined Plaintiff's sore and removed a "small foreign body, " which may have been "a small flake of metal from [Plaintiff's] previous gunshot wound." Tr. 276.

On April 10, 2012, Ms. Stegman examined Plaintiff a third time. Plaintiff reported that he "ran out" of the Zoloft previously prescribed by Ms. Stegman. Tr. 287. "He thought that was all he was supposed to take; he did not get it refilled." Tr. 287. Plaintiff also reported that he takes Xanax daily and it "really help[s] his stressors." Tr. 287. On examination, Ms. Stegman noted that Plaintiff has "a couple of granulated areas on his left forearm distal to his gunshot wound[]" and these areas "appear to be healing." Tr. 287. Ms. Stegman prescribed Effexor and Xanax. Tr. 287. Ms. Stegman recommended counseling for Plaintiff. Tr. 287.

On August 13, 2012, Kendra Emery, D.O. ("Emery"), examined Plaintiff. Tr. 247, 252. Although Plaintiff reported that "he quit abusing alcohol in 2005, " he stated that he "uses alcohol when he has access to it." Tr. 248. In addition, Plaintiff stated that "he used marijuana daily for one year, " quitting at age 14. Tr. 248. After examination, Dr. Emery diagnosed Plaintiff with anxiety, PTSD, knee pain, and restricted function, extension, and fine motor movements of the left hand. Tr. 251. Dr. Emery "highly recommend[ed] a psychiatric evaluation." Tr. 251. Dr. Emery found that Plaintiff, during an eight-hour workday, should be able to stand for four hours with breaks, and could walk or sit for the entire eight hours. Tr. 251. Dr. Emery noted that "[t]here are manipulative limitations, frequent mobility with the left hand, gripping, reaching, pulling, grasping, handling, and feeling." Tr. 251. Dr. Emery found that "[Plaintiff] ...

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