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Green v. Colvin

United States District Court, D. Colorado

December 17, 2014

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

For Jane Diane Green, Plaintiff: Gail C. Harriss, Harriss & Martinez, LLC, Durango, CO.

For Carolyn W. Colvin, Acting Commissioner of Social Security Social Security Administration, Defendant: J. Benedict Garcia, U.S. Attorney's Office-Denver, Denver, CO; James Lawrence Burgess, Social Security Administration-Denver, Office of the General Counsel, Region VIII, Denver, CO.



Plaintiff, Jane Diane Green, appeals from the Social Security Administration (" SSA") Commissioner's final decision denying her application for supplemental security income, filed pursuant to Title XVI of the Social Security Act, 42 U.S.C. § § 1381-1383c. Jurisdiction is proper under 42 U.S.C. § 405(g). Oral argument would not materially assist me in the determination of this appeal. After consideration of the parties' briefs, as well as the administrative record, I REVERSE and REMAND the Commissioner's final order for further proceedings.


Plaintiff seeks judicial review of the Commissioner's decision denying her application for supplemental security income filed on November 13, 2007. [Doc #10 -- Administrative Record (" AR") 148] After the application was initially denied on January 24, 2008 [AR 91], an evidentiary hearing was held on September 16, 2009, and a second evidentiary hearing was held on June 22, 2010. [AR 50, 64] An Administrative Law Judge (" ALJ") issued a written ruling on July 26, 2010. [AR 32] In that ruling the ALJ denied her application on the basis that she was not disabled because Plaintiff had the residual functional capacity (" RFC") to perform work existing in significant numbers in the national economy (Step Five). [AR 43-44] The SSA Appeals Council subsequently denied Plaintiff's administrative request for review of the ALJ's determination, making the SSA Commissioner's denial final for the purpose of judicial review. [AR 1] See 20 C.F.R. § 416.1481. Plaintiff timely filed her complaint with this court seeking review of the Commissioner's final decision.


Plaintiff was born on October 6, 1960. [AR 148] She was forty-nine years old on the date of the ALJ's decision, and had completed two years of college education. [AR 185] She had worked as a cashier for Walmart, a waitress, and a sampler at Safeway. [AR 158-59, 182] In her application, Plaintiff alleged she became disabled on July 31, 2006 due to her depression, anxiety, asthma, irritable bowel syndrome, joint pain, a torn hamstring in her right leg, right knee problems and her need to use a cane. [AR 181]

A. Mental Health Records

The medical records reveal that at the time of her onset date, Plaintiff had been receiving at least occasional mental health treatment for depression at Southwest Colorado Mental Health Center. [AR 465-66] On October 6, 2005, Lori Raney, a psychiatrist with Southwest Colorado Mental Health, assessed major depressive disorder, generalized anxiety disorder, borderline personality disorder and chronic pain. [AR 466] On April 7, 2006, Dr. William Karls, another psychiatrist at Southwest Colorado Mental Health Center, assessed major depression. [AR 465]

On August 1, 2006 -- the day after her alleged date of disability -- Plaintiff reported to Emergency Services at Southwest Colorado Mental Health Center having a " meltdown" due to stressful circumstances at work causing her anxiety and physical symptoms. [AR 458-64] At that time her Mental Health DSM was assessed as major depressive disorder, recurrent, unspecified; anxiety disorder NOS; social phobia, generalized; sedative, hypnotic or anxiolytic abuse; and personality disorder NOS. In addition, it noted chronic pain, asthma, irritable bowel syndrome, migraines, arthritis, and moderate housing problems and problems with primary group, as well as severe economic problems. Her Global Assessment of Functioning (" GAF") was assessed at 35 as the lowest, and 50 at the highest, with her current GAF at 45. [AR 460] The emergency service summary indicates that the therapist " [d]iscussed options for client around her job and she chose to call Walmart while meeting with therapist and quit her job as this would bring her a lot of relief." [AR 458] Plaintiff recalls that she was fired from Walmart at this time because she failed to report and did not call in sick. [AR 180]

Thereafter, Plaintiff continued to see Dr. Raney, Dr. Karls and advanced practice nurse Lorraine Pearson, at Southwest Colorado Mental Health Center. [AR 227-41, 457-69] On October 11, 2006, Ms. Pearson assessed major depressive disorder and, on November 20, 2006, she assessed Plaintiff with major depressive disorder " recurrent, mild." [AR 457, 227] Dr. Raney assessed mood disorder, NOS - rule out bipolar, and PTSD on March 20, 2007. [AR 228]

Beginning in April of 2007, Plaintiff saw Ms. Pearson almost monthly. [AR 230-41] Ms. Pearson's assessment was major depressive disorder, panic disorder with agoraphobia, and rule out bi-polar disorder. [AR 230-35] In the additional records furnished to the SSA Appeals Council after the ALJ's decision was rendered, Plaintiff provided a Colorado Department of Human Services MED-9 form, dated May 3, 2007, in which Ms. Pearson described Plaintiff's clinical history and mental status as a:

history of depressive disorder and anxiety attacks. She also has chronic pain, migraines and asthma. She experiences anxiety with agoraphobia and is often unable to leave her apartment. She has been unable to work due to depression, anxiety and migraines. [AR 516]

Ms. Pearson opined that Plaintiff's prognosis was an expected length of disability of 12 months or longer in that her " anxiety/agoraphobia, migraines and chronic pain need to be managed in order for [her] to sustain employment." [AR 516]

By September 2007, Pearson's assessment of Plaintiff was major depressive disorder, recurrent, as well as anxiety disorder NOS, 2 spectrum disorder with panic attacks, social anxiety disorder, generalized anxiety disorder and agoraphobia. [AR 237] On November 8, 2007, Ms. Pearson noted a small improvement in Plaintiff's anxiety and intensity of panic. [AR 241] Her affect was evaluated as available and appropriate, and her mood was anxious. Assessment was major depressive disorder, recurrent; anxiety disorder NOS; 2 spectrum disorder with panic attacks; social anxiety disorder; generalized anxiety disorder; and agoraphobia. [AR 241] On January 10, 2008, Ms. Pearson noted that Plaintiff was not doing any better, and her assessment was: panic with agoraphobia, PTSD, rule out bi-polar, and chronic pain. [AR 351-52] During this time, Plaintiff was prescribed various prescription medications for the treatment of her mental health issues. [AR 243-4] For example, on November 15, 2007, Plaintiff reported taking Lexapro for depression, Vistaril for itching and Xanex for anxiety and agoraphobia. [AR 184]

In January of 2008, a non-examining doctor, M. Berkowitz -- identified by the SSA as a psychologist -- reviewed Plaintiff's medical records and completed a Psychiatric Review Technique form and a Mental Residual Functional Capacity Assessment. [AR 250-63, 264-66] Dr. Berkowitz noted that Plaintiff suffered from the following affective disorders: Depressive Syndrome (characterized by sleep disturbance or decreased energy or difficultly concentrating or thinking) and Anxiety Disorder. [AR 253] Dr. Berkowitz indicated that Plaintiff's records showed that she was moderately limited in her ability to: maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual; and complete a normal workday and workweek without interruption from psychological based symptoms, and perform at a constant pace. [AR 264-65] Dr. Berkowitz noted that, although Plaintiff identified " a number of depressive symptoms which appear to be of moderate intensity, " she managed to function and handle her activities of daily living adequately although it does take effort for her to persist. [AR 266] He indicated that the examinations in the record did not demonstrate any significant social deficits, and her mental status examination results generally reflected intact cognitive functioning. [AR 266] In conclusion, Dr. Berkowitz opined that while Plaintiff's " allegations are partially credible and her overall stress tolerance is reduced, she does appear capable of simple to slightly more complex tasks with no more than moderate public contact." [AR 266]

As of February 14, 2008, Ms. Pearson noted that Plaintiff was not participating in treatment. [AR 349] At that time Ms. Pearson's assessment was major depressive disorder, recurrent and unspecified; anxiety disorder NOS 2 -- Spectrum disorder with panic attacks; social anxiety disorder, generalized anxiety disorder, and agoraphobia. [AR 349] On March 31, 2008, Plaintiff reported to Dr. Raney that she had been on and off her medications, and she lacked the ability to follow through with the treatment plan. [AR 347] Dr. Raney noted she was neatly dressed, walked with a cane, was cooperative, tremulous, anxious, sad, tearful, poor sleep, low energy, increase in appetite, although no suicidal ideation and she was alert and oriented X3. Her assessment continued to be major depressive disorder, and anxiety disorder NOS. [AR 347] In the additional records furnished to the SSA Appeals Council, Plaintiff provided a Colorado MED-9 form, dated March of 2008, in which Dr. Raney opined that Plaintiff's diagnosis was major depression and anxiety disorder, and that she was disabled for longer than 12 months due to her nervousness, anxiety, walking with a cane and being " sad." [AR 517-518]

Plaintiff then attended four sessions with Eric Foss, a counselor with Southwest Colorado Mental Health Center, in March, April and May of 2008. [AR 343-46] During their last session on May 6, 2008, Mr. Foss indicated that Plaintiff reported to the session under the influence of prescription medications she had taken for a migraine. [AR 343] Thereafter, on June 23, 2008, Petitioner saw Dr. Raney and refused further counseling services with Mr. Foss. At that appointment, Dr. Raney's assessment remained major depressive disorder, and anxiety disorder, NOS. [AR 341] On July 17, 2008, Plaintiff reported to Ms. Pearson that she doing well emotionally, but was still battling her migraines. [AR 339]

Starting in October 2008, Plaintiff began regular counseling sessions with Eileen Andricovich, LMFT, at Southwest Colorado Mental Health Center. [AR 317-36, 422-56] During her appointments with Ms. Andricovich, Plaintiff reported panic and anxiety symptoms, as well as migraines and pain management that interfered with her normal functioning, and that her daily life was very isolated. [AR 336] On December 19, 2008, Plaintiff reported being happy ...

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