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Rose v. Colvin

United States District Court, D. Colorado

February 18, 2016

LYLE N. ROSE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

ORDER

RAYMOND P. MOORE United States District Judge.

This matter is before the Court on Plaintiff Lyle N. Rose’s (“Plaintiff”) request for judicial review pursuant to 42 U.S.C. § 405(g). (ECF No. 1.) Plaintiff challenges the final decision of Defendant Carolyn W. Colvin, Acting Commissioner of the Social Security Administration, by which she denied Plaintiff’s applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) respectively under Titles II and XVI of the Social Security Act (“Act”). An Administrative Law Judge (“ALJ”) ruled Plaintiff was not disabled within the meaning of the Act and therefore not entitled to DIB or SSI.

Defendant provided the Court with the administrative record. (ECF Nos. 9; 9-1; 9-2; 9-3; 9-4; 9-5; 9-6; 9-7; 9-8.) Plaintiff filed an opening brief to which Defendant responded. (ECF Nos. 12; 15.) Plaintiff did not file a reply brief in support of its Complaint within the time permitted and did not seek an extension of time in which to file such brief. (See generally ECF; ECF No. 11.)

For the reasons set forth below, the Court affirms Defendant’s denial of Plaintiff’s DIB and SSI applications.

I. BACKGROUND

Plaintiff applied for DIB and SSI in January 2010, alleging he was disabled as of August 1, 2007, due to the following conditions that limit his ability to work: anxiety, depression, and post-traumatic stress disorder (“PTSD”). (Admin. R. (“Tr.”) 92, 226-41, 286.) After Plaintiff’s applications were initially denied, Plaintiff requested a hearing before an ALJ. (Tr. 130-40.) In September 2011, an ALJ denied Plaintiff’s applications. (Tr. 104-121.) Plaintiff requested review of the ALJ’s decision and, in May 2012, the Appeals Council granted Plaintiff’s request for review and remanded the matter to an ALJ for further consideration. (Tr. 122-26.) In October 2012, ALJ William Musseman denied Plaintiff’s applications. (Tr. 8-30.) That is the decision before the Court. Plaintiff requested review of the ALJ’s decision, and in January 2014, the Appeals Council denied such request. (Tr. 1-7.) Plaintiff timely requested judicial review before the Court.

A. Background and Relevant Medical Evidence

Plaintiff was born in 1968. (Tr. 226.) Plaintiff completed high school. (See Tr. 287.) Plaintiff’s past relevant work history, as referenced in the Dictionary of Occupational Titles, includes: tow-truck operator; construction flagger; cook; cashier; and maintenance worker. (Tr. 46.)

Plaintiff claims he became disabled on August 1, 2007 due to a combination of mental health impairments. (Tr. 226, 286.)

1. Plaintiff’s Medical Records

In February 2004, Gen Numaguchi, psychologist, evaluated Plaintiff for anxiety. (Tr. 441.) Dr. Numaguchi diagnosed Plaintiff as having a panic disorder with agoraphobia and dysthymic disorder. (Tr. 443.) Dr. Numaguchi assigned Plaintiff a global assessment of functioning (“GAF”) score of 45. (Tr. 443.)

In August 2007, Misha Capler, a licensed clinical social worker (“LCSW”), diagnosed Plaintiff with panic disorder, agoraphobia, and dysthymic disorder. (Tr. 452.) Capler assigned Plaintiff a GAF score of 49. Also in August 2007, Kim McFarlane, a physician’s assistant (“PA”), prescribed Plaintiff Zoloft. (Tr. 433.) In 2007, Plaintiff participated in a social event while using Xanax. (Tr. 430.) Both Capler and McFarlane are associated with the Green River Medical Center. (See Tr. 392-452.)

In January 2008, McFarlane increased Plaintiff’s Zoloft dosage and prescribed Plaintiff Lorazepam. (Tr. 430.) Plaintiff reported to McFarlane that he had been unable to go outside. (Tr. 430.) In March 2008, Plaintiff reported to McFarlane that he was sleeping well, able to go outside, work in the yard, and take walks. (Tr. 431.) In April 2008, Plaintiff reported to McFarlane that he had purchased a motorcycle and was riding it; but that he was not employed or placing himself in a social setting. (Tr. 431.) In August 2008, McFarlane examined Plaintiff for the purpose of Plaintiff’s obtaining a medical certificate for a commercial driver’s license. (Tr. 417.) McFarlane found that Plaintiff met the standards for a commercial driver’s license but required periodic monitoring due to anxiety. (Tr. 435-37.) At that time, Plaintiff refused to see a psychotherapist. (Tr. 419.)

In February 2009, Ron Day, a LCSW, assessed Plaintiff. (Tr. 423.) Day assigned Plaintiff a GAF score of 50. (Tr. 424.) Also in February 2009, McFarlane prescribed Plaintiff Celexa. (Tr. 416.) In April 2009, Plaintiff reported to Day that he was “continuing to progress” with “fewer setbacks” and that he was “getting out more.” (Tr. 422.)

In March 2009, Plaintiff reported to Day that he was feeling better and that he was getting out more. (Tr. 426.) Day noted that Plaintiff made good eye contact and was more expressive. (Tr. 426.) In March 2009, Plaintiff reported to McFarlane that his depression and anxiety were “manageable.” (Tr. 411.)

In November 2009, Day wrote a letter to Plaintiff’s attorney that he had seen Plaintiff in weekly sessions for approximately four months. (Tr. 390-91.) Day opined that Plaintiff was unable to find or maintain employment due to his severe social phobia. (Tr. 390-91.)

In April 2010, Day completed (and Dr. Numaguchi co-signed) a “psychiatric/psychological impairment questionnaire, ” in which he assessed Plaintiff was markedly limited in most areas of social interactions, in the ability to complete a normal workweek without interruptions, and in the ability to respond appropriately to changes in the work setting. (Tr. 478-85.) Day opined that Plaintiff would likely miss two to three workdays a month due to his symptoms. (Tr. 484-85.)

In July 2011, Steve Volman, psychologist, conducted a consultative examination of Plaintiff. (Tr. 494-99.) Dr. Volman reviewed “a series of medical notes spanning approximately March 2010 back to 2007 from the Green River Medical Center.” (Tr. 494.) Dr. Volman found Plaintiff to have a depressed mood and fair eye contact but that Plaintiff was reasonably articulate, displayed no evidence of a decrease in quantity of thought or looseness of association, and could respond to questions. (Tr. 497.) Dr. Volman found Plaintiff’s concentration to be slightly impaired but his attention was adequate. (Tr. 497.) Dr. Volman diagnosed Plaintiff with social phobia and dysthymic disorder. (Tr. 498.) Dr. Volman assigned Plaintiff a GAF score of 59. (Tr. 498.) Dr. Volman completed a “medical source statement of ability to do work-related activities (mental).” (Tr. 491-93.) Dr. Volman found that Plaintiff had an “extreme” limitation in the ability to interact appropriately with the public; “marked” limitation in the ability to interact with supervisors and with co-workers; and “moderate” limitation in the ability to understand, remember, and carry out complex instructions, and in the ability to make judgments on complex work-related decisions. (Tr. 491-92.)

In June 2012, Korrey Klein, M.D., treated Plaintiff. (Tr. 507.) Dr. Klein examined Plaintiff and determined that Plaintiff had normal mood, affect, thought processes, speech, judgment, and was appropriately dressed. (Tr. 507.) Dr. Klein found Plaintiff to be visibly anxious when describing social situations. (Tr. 507.) Dr. Klein prescribed Plaintiff Xanax. (Tr. 508.) In July 2012, Plaintiff reported to Dr. Klein that Xanax was helping his anxiety but that he was not interested in a daily medication for anxiety. (Tr. 505.) In August 2012, Dr. Klein completed a “psychiatric/psychological impairment questionnaire” in which he noted that he had been treating Plaintiff for four months. (Tr. 519-26, 519.) Dr. Klein found Plaintiff had a “marked” limitation in the ability to sustain a routine without supervision, interact with the public, and travel to unfamiliar places or use public transportation. (Tr. 522-24.) Dr. Klein further opined that Plaintiff would need to miss two to three days per month of work due to his impairments. (Tr. 526.)

2. Hearing Testimony

At the September 2012 hearing, Plaintiff testified he was unable to work. (Tr. 37.) Plaintiff testified that he was only able to perform work in the past because he worked with his wife. (Tr. 37.) Plaintiff testified that he had panic attacks when he was in public. (Tr. 38.) Plaintiff testified that he had headaches which were not controlled by medication. (Tr. 39.) Plaintiff testified that he had anger outbursts, emotional breakdowns, and suicidal thoughts. (Tr. 40.) Plaintiff testified that he did not see a psychiatrist or therapist because those providers did not let his family attend treatment sessions with him. (Tr. 41.)

Plaintiff’s wife testified that Plaintiff never left the house alone and that she worked with Plaintiff at Plaintiff’s previous jobs. (Tr. 44.)

B. The ALJ’s Decision

On October 1, 2012, ALJ Musseman issued his decision in this matter denying Plaintiff DIB and SSI. (Tr. 8-30.) In reaching his decision, ALJ Musseman followed the five-step sequential evaluation process for evaluating disability claims. (Tr. 14-28.) ALJ Musseman found that Plaintiff has met the disability insured status of the Act through December 31, 2012 and has not engaged in substantial gainful activity since August 1, 2007, the alleged onset date. (Tr. 14.) ALJ Musseman found that Plaintiff has the following severe impairments: social phobia and dysthymic disorder. (Tr. 14-15.) ALJ Musseman found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in Appendix 1 of the Social Security Regulations, specifically considering Listings 12.04 and 12.06. (Tr. 15-17.) ALJ Musseman found Plaintiff’s residual functional capacity (“RFC”) to be as follows: “to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant cannot perform complex tasks, defined as having an svp of 2 or less; can occasionally deal with co-workers; cannot deal with the general public; and can tolerate only minimal supervision.” (Tr. 17-23.) ALJ Musseman found that Plaintiff has past relevant work and that he is able to perform such work. (Tr. 23-25.)

Based on the vocational expert’s testimony, which in turn was predicated on ALJ Musseman’s hypotheticals and in consideration of Plaintiff’s age, education, and work experience, ALJ Musseman further found that Plaintiff could perform other jobs that exist in significant numbers in the ...


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