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Sheron v. Colvin

United States District Court, D. Colorado

February 23, 2016

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



Plaintiff Danette Sheron appeals from the Social Security Administration (“SSA”) Commissioner’s final decision denying her application for disability insurance benefits (“DIB”), filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-433. Jurisdiction is proper under 42 U.S.C. § 405(g). The parties have not requested oral argument, and the Court finds it would not materially assist the Court in its determination of this appeal. After consideration of the parties’ briefs and the administrative record, the Court affirms the ALJ’s decision and the Commissioner’s final order.


I. Procedural History

Plaintiff seeks judicial review of the Commissioner’s decision denying her application for DIB benefits filed on August 29, 2012, alleging a disability caused by Asperger’s Syndrome and an anxiety disorder, with a disability onset date of August 21, 2012. [AR 32, 138-39, 180] Because Plaintiff applied for DIB only, she had to establish that her disability began before her September 30, 2017, date last insured. [AR 32] After the application was initially denied on February 4, 2013 [AR 99-101], an Administrative Law Judge (“ALJ”) held a hearing on September 25, 2013, upon the Plaintiff’s request [AR 46-88]. On November 14, 2013, the ALJ issued a written, unfavorable decision, finding Plaintiff had not been disabled from the alleged date of the onset of disability through the date she was last insured, because considering Plaintiff’s age, education, work experience and residual functional capacity [“RFC”], there were jobs existing in significant numbers in the national economy that Plaintiff could perform. [AR 29-45] On March 24, 2015, 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 1-7] See 20 C.F.R. § 404.981. Plaintiff timely filed her Complaint with this Court seeking review of the Commissioner’s final decision. [Docket #1]

II. Plaintiff’s Alleged Mental Conditions

Plaintiff was born on December 30, 1985, and was 26 years old on the alleged onset date, claiming disability due to an anxiety disorder, Asperger’s Syndrome, and depression - problems she had experienced since childhood. [AR 138, 180, 205, 247, 294] Plaintiff completed high school, participating in band and drama club throughout her high school years; she later earned a bachelor’s degree (with a 3.0 grade point average) from Colorado State University, Pueblo. [AR 246-47] Plaintiff has past experience working in call centers and at fast food restaurants as a cashier (working at McDonald’s for more than two-and-a-half years [AR 247]), although the ALJ found these jobs were not past relevant work because they required dealing with the public, which she had trouble doing because of the social problems caused by her impairments. [AR 40, 53-55] Plaintiff’s medical records involve both physical and mental issues; however, as Plaintiff’s argument on appeal does not question the ALJ’s handling of the physical problems, the Court will focus only the mental disorders. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (“We will consider and discuss only those of [plaintiff’s] contentions that have been adequately briefed for our review.”)

Plaintiff’s medical records involving her mental condition are presented in this record exclusively through documents from her treating psychiatrist, John Hardy, M.D., her doctor since late 2009. [AR 264] Records begin in the summer of 2011, with Plaintiff “still looking for work” but seeming to “be holding her own.” [AR 245] By November 2011, the records show she had gotten a job at a call center, was in a good mood, and “seems much more confident than when she first came here.” [AR 244] The doctor reported in January 2012 that she was working and doing “ok” on her medications. [AR 243] In March 2012, she reported she “almost” had a panic attack at work and was “upset about the shifts.” [AR 242] The doctor suggested she “continue to stretch her experiences outside her comfort zone.” [Id.] In April 2012, she discussed a relationship she had begun with someone; she also discussed her schedule change at work. [AR 241] In June 2012, she expressed being “demoralized” at work, and “she wept when [the doctor] acknowledged how difficult it is for her to day after day go back to the call center.” [AR 240] By July 2012, she told the doctor she was “feeling burned out after seven months at the call center.” [AR 239] The doctor noted her “previous experiences” make her “feel pessimistic and [make her] difficult to motivate.” [Id.] The doctor suggested she “look at civil service/Fort Carson opportunities on the Internet, ” and “she warmed slightly to the idea.” [Id.]

On August 17, 2012, she met with the doctor, who noted Plaintiff had taken three weeks medical leave from work “due to headaches and stress.” After returning to work, she reported to the doctor that she broke down crying at work; she later that same day saw Dr. Hardy, along with her mother, telling him her employer asked her to either resign or take a month off. [AR 237] Plaintiff’s mother asked at the session if Plaintiff should apply for disability, indicating that Plaintiff’s younger sister (who has autism) is on disability. [Id.] The doctor “tried to let her think about what she wants rather than mom deciding for her.” [Id.] At Plaintiff’s September 4, 2012 appointment, Dr. Hardy agreed she could no longer work at the call center, noting “I told her I think she made a heroic effort given her Asperger’s and anxiety disorder of surviving as long as she did.” [AR 236] He indicated her “concrete” thinking makes psychotherapy difficult at times; for example, she struggled to “visualize her perfect job.” [Id.] When asked if she could manage a Game Stop store, she responded: “Well retail would mean part time and having to work too much over the holidays.” [Id.] Also at this appointment, Plaintiff told the doctor she had applied for disability, and the doctor explained to her why an independent evaluation would be required beyond his opinion. [Id.]

After she stopped working, Plaintiff received unemployment benefits, applied for jobs, and volunteered at the library and the animal shelter. [AR 235, 284, 304] She also started dating and attended anime conventions. [AR 235, 284-85, 303, 310] Dr. Hardy continued to treat her at least through the middle of 2013, generally reporting the same characteristics as in previous sessions. [AR 300-304] At an April 2, 2013 session, Plaintiff expressed stress because her father “thinks she may jeopardize her disability if she actually secures a job.” [AR 304] The doctor also indicated at that appointment that Plaintiff’s mood was “mildly dysphoric” and that she was “guarded, ” yet he said she had no thought disorder, while she also had intact memory and concentration, speech, and motor function. [Id.]

III. Medical Opinion Evidence

A. Carlos Rodriguez, Ph.D.- SSA Consultative Evaluator

On January 15, 2013, Dr. Rodriguez, a psychologist, evaluated Plaintiff at the request of the SSA. [AR 246[ He both reviewed Dr. Hardy’s medical notes and conducted an interview and detailed mental status examination of Plaintiff. [Id.] Plaintiff reported to Dr. Rodriguez that, since childhood, she has had “difficulty with social relationships” and “a history of depression.” [AR 247] She told the doctor she “has had an enduring interest in video games since the age of 4 and adds that she currently plays video games eight hours a day, describing herself as ‘addicted.’” [Id.] She also reported feeling anxious about her future ability to work and provide for herself, feelings that sometimes lead to agitation and cause her to have difficulty breathing. [Id.] She told the doctor she “would be interested in job training as an administrative assistant.” [Id.] Dr. Rodriguez concluded:

[Plaintiff’s] ability to engage in sustained concentration, memory, persistence and pace and social interaction are significantly impaired due to her psychopathology and her performance on the mini-mental status examination. Her ability to adapt to work changes is severely impaired due to her psychopathology and cognitive deficits. Her ability to engage in understanding of work-related activities is moderately impaired due to her psychopathology and her cognitive deficits.

[AR 249]

B. Douglas Hanze, Ph.D. - SSA Consultative Evaluator

In February 2013, Dr. Hanze provided a consultative review of the record, including Dr. Rodriguez’s report, and concluded Plaintiff could work as long as the work had limited social contact. [AR 92-94] His report explained that Plaintiff has full activities of daily living “except for social problems.” [AR 94] He noted Plaintiff volunteers at an animal shelter, worked for more than two years in high school at one job, has a college degree, and “appears capable of work with limited social contact” as she has “social anxiety and a diagnosis of Asperger’s.” [Id.]

C. John Hardy, M.D. - Treating Physician Opinion

Dr. Hardy first explained in a letter dated November 28, 2012, that he had treated Plaintiff from October 2009 to April 2, 2013, meeting with her usually each month for Plaintiff’s depression anxiety disorder, and Asperger’s Syndrome and later found that she “is clinically stable but requires ongoing treatment.” [AR 273] He also at that time completed a medical form, labeling Plaintiff “disabled” with a date of onset at “birth.” [AR 274] Dr. Hardy then in April 2013 completed a Psychiatric/Psychological Impairment Questionnaire regarding Plaintiff. [AR 264-71] He again noted his diagnosis of Plaintiff having Asperger’s Syndrome, an anxiety disorder, and depression, indicating that she was unlikely to improve further based upon his continuous treatment of her during the prior more than three years. [AR 264] He opined that Plaintiff would have significant impairment in her ability to sustain concentration, memory, persistence, pace, and social interactions; meanwhile, he noted a severely impaired ability to adapt to work changes, and a moderately to severely impaired ability to understand work-related activities. [AR 248-49] He explained Plaintiff has “rumination and pathological anxiety related to social interactions, recurrent panic attacks, and decompensations when socially stressed, ” further noting “she often would have to leave work or would struggle to remain at work at previous position.” [AR 266] Dr. Hardy assigned Plaintiff a GAF score of 50[1], concluding Plaintiff would be “capable of low stress” in a work situation. [AR 270]

In a letter dated June 14, 2013, Dr. Hardy provided his opinion in response to a letter from her attorney who was representing her in her disability claim. [AR 272] The letter reads:

[Plaintiff] has suffered from Asperger’s disorder since childhood. She presented to me in 2009. At that time she had already lost two jobs due to the anxiety which her condition caused her in the work arena. She has tried heroically over the years to maintain employment despite repeated panic attacks and depressive episodes. I believe she has truly been disabled since her presentation akin to an individual who continues to labor with a severe back injury. My timing of her disability thus reflects her effort to attempt to maintain employment with a condition that caused her considerable suffering.


IV. Hearing Testimony

The ALJ held a hearing on September 25, 2013, at which her attorney had the opportunity to question her. [AR 46-88] She testified that her depression makes her feel “bummed out, ” [AR 56]; she has panic attacks that make her cry, stop breathing, and at times faint [AR 58]; and she gets anxious even when looking for jobs [AR 59]. She explained that she spends time volunteering at an animal shelter once a week. [AR 52] On other days, she said she stays in her pajamas except to walk her dog. [AR 56] She sleeps sometimes 10-to-12 ...

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