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Babcock v. Berryhill

United States District Court, D. Colorado

May 11, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Suzanne Guidry appeals the final decision of the Acting Commissioner of Social Security (“SSA”) denying her application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. I have considered the parties' briefs (ECF Nos. 12-14) and the administrative record (ECF No. 9) (“AR”). Oral argument would not materially assist me in determining this appeal.

         Ms. Guidry argues the Administrative Law Judge (“ALJ”) improperly weighed the medical opinion evidence, should have found her disabled based on SSA's “grid rules, ” erred in evaluating her credibility, and inadequately accounted for her mental impairments and work absenteeism. As I describe below, I disagree with these arguments. Accordingly, I AFFIRM SSA's decision.

         I. Background

         A. Facts

         1. Mental Impairments

         Ms. Guidry has bipolar disorder. E.g., AR 308. Her treatments have included medication, hospitalization, various forms of psychotherapy, and electro-convulsive treatment (“ECT”). Despite her mental illness, Ms. Guidry earned a college degree in computer information systems and worked as an information technology support engineer before filing for disability. AR 41.

         Ms. Guidry was hospitalized in late November 2012, her first psychiatric hospitalization in 20 years. AR 1540. She was depressed, overwhelmed at work, and had passive suicidal ideation. Id. She was seeing her primary care physician for psychiatric medications, and he had referred her to the hospital. AR 1540. At the hospital, she started a new antipsychotic medication to address her paranoia, which helped. AR 1541. When she was discharged a few days later, she planned to request medical leave from her job so she could work six hours a day instead of eight, a plan her treating psychiatrist thought “quite appropriate.” AR 1541. At discharge, she was “feeling much better.” AR 1541.

         She participated in group therapy at Centennial Peaks after her discharge. She often described her job as a significant source of anxiety and stress. E.g., AR 1528, 1531, 1533, 1535, 1564. Despite being depressed and having mood swings during the therapy, she was an “emotional leader” among the group. AR 1478.

         In December 2012, she started seeing Dr. Susan Ryan, a clinical psychologist, for individual psychotherapy. AR 1661. Dr. Ryan's treatment notes reflect Ms. Guidry's struggles at work and with anxiety during that time. Id.

         Ms. Guidry saw Dr. Gerald Chitters, a psychiatrist, for medication management beginning in March 2013. Her mood was “bleak, ” and she was “very seriously suicidally depressed.” AR 904, 908. He adjusted her medications, e.g., AR 904, and she improved by late April, AR 719, and continued to do well in May, AR 718. In June, she took a turn for the worse. AR 717. In July, she reported she couldn't get out of bed and was “completely uninterested in life.” AR 715-16. She continued to struggle in August, reporting that she couldn't get up and was “actively suicidal.” AR 711. In early September, her mood was unstable and she was “sobbing” at her appointment. AR 710. Dr. Chitters raised the possibility of electroconvulsive therapy (ECT) treatments with Ms. Guidry. Id. ECT is a procedure, done under general anesthesia, where electric currents are passed through the brain, intentionally triggering a brief seizure. See Mayo Clinic, Electroconvulsive therapy (ECT) Definition, (visited April 28, 2017). It “seems to cause changes in brain chemistry that can quickly reverse symptoms of certain mental illnesses.” Id. But Ms. Guidry started to do much better later in September, and while she didn't rule out ECT, she also didn't start it. AR 709. She did see a doctor at Centennial Peaks Hospital, who believed ECT could “really help her” and that she had “few other options.” AR 924.

         When her mental health declined again in November 2013, she decided to try ECT. AR 706. In late November 2013, Ms. Guidry saw Dr. Leon Que at Boulder Community Hospital to discuss ECT therapy. AR 308-13. She told Dr. Que that suicide was “an eventuality, ” that she had “continuous passive death wishes” and that she felt as though she had lost 30 IQ points. AR 308. After the appointment, Dr. Que recommended inpatient admission, but Ms. Guidry refused. AR 313. Dr. Que ordered a medical work-up to confirm that Ms. Guidry was a candidate for ECT. Id. Dr. Que also predicted that Ms. Guidry would need to be admitted for hospitalization in the near future. AR 312.

         Dr. Que was right. In early December 2013, not long after her initial consultation with Dr. Que, she was hospitalized for intrusive suicidal ideation. AR 739. She started bilateral ECT while hospitalized, AR 1611, and Dr. Que adjusted her medications because one was interfering with the effectiveness of the ECT treatments, AR 739, 1641. When discharged after about ten days in the hospital, Ms. Guidry was apprehensive about going back to work. AR 316, 1642. Dr. Que told her that her “job is not to have a job” because her focus should be on getting her depression under control before she thought about returning to work. AR 316, 1642. Ms. Guidry never went back to work after this first round of ECT, but she was paid through April 2014. AR 43.

         In January 2014, not long after her discharge from Boulder Community Hospital, Dr. Chitters reported that Ms. Guidry was “terrible, ” felt “dumb, ” and reported that the bilateral ECT did not help. AR 700. Ms. Guidry also described the bilateral ECT treatment's cognitive side effects as “unbearable.” AR 429, 919. However, the contemporaneous treatment records do not record any negative cognitive side effects. See AR 1611-31.

         Ms. Guidry was admitted as an in-patient at Centennial Peaks in late January 2014 because she planned to kill herself. AR 502-04. She also started unilateral ECT treatment. AR 677. Ms. Guidry reported the unilateral ECT did not have negative cognitive side effects. AR 429. Her ECT psychiatrist immediately reported she was “doing better, ” with fewer obsessive thoughts, less irritability, and “much improved” cognition. AR 678. After two treatments, she was “belly laughing, ” “happy, ” and her cognition improved again. AR 672. However, a physician at Centennial Peaks also noted that Ms. Guidry was still “impulsive.” AR 1367. He also remarked that it was “amazing she has done so well professionally” given the severity of her mental illness. Id. The ECT treatments continued to be effective, AR 669, and Ms. Guidry was doing “excellent” despite some issues at work, AR 666. She was discharged from the hospital in early February. AR 1378-79.

         In February 2014, Ms. Guidry started dialectical behavior therapy (in addition to the ECT) to develop more effective coping skills. AR 429, 434. Ms. Guidry had a history of marijuana and alcohol abuse, impulsive behavior, and isolative behavior that she hoped the therapy would address. AR 434. She also was stressed about losing her job, disliking her job, and six-figure student loans. AR 429. She also reported she was very depressed. AR 1369, 1371.

         Nevertheless, in early March 2014, Ms. Guidry's ECT psychiatrist reported she was “doing excellent.” AR 660. He described her as “smiling, bright, cordial, [and] focused” and noted that he “hope[d] this improvement lasts.” AR 1373. However, she soon had a relapse, with suicidal ideation and rumination on loss. AR 657. Her doctor increased the frequency of the ECT, id., and Ms. Guidry improved by late March, AR 654. She expressed concern about the prospect of returning to work. Id.

         Ms. Guidry was “stable” and doing “fairly well” in early April. AR 649. However, her ECT psychiatrist tempered his description of her progress with an explanation that she was “still a far cry from when [she] was best” and was not “able to tolerate work.” AR 645. He further explained that her last relapse was “so severe, it may never clear to the point of work functioning.” AR 645. But by later April, he concluded she was doing “phenomenally.” AR 642. She had graduated from the dialectical behavior therapy program she started in February and reported she felt joy for the first time in years. Id. Despite this progress, he also concluded she needed more ECT treatments to prevent another relapse. AR 640. Ms. Guidry continued to do well throughout May. AR 636-39. Throughout her unilateral ECT treatments, treatment records revealed normal memory and cognition. See AR 605-79; AR 935-73.

         But in early June 2014, she was doing “terribly.” AR 632. She had a “clear relapse” with suicidal ideation, which her ECT psychiatrist believed was related to a change in her medications. Id. After adjusting her medications and continuing ECT, she began to do better. AR 618-30.

         But in August 2014 she had yet another relapse, and her ECT psychiatrist concluded that she probably could not function without weekly ETC and likely could never return to work. AR 614-15. This news upset Ms. Guidry, and it spurred her to try and prove him wrong. AR 611. She was doing well in September and October, AR 605-08, and told Dr. Ryan that her “thinking was somewhat better than the months after bilateral ECT, ” but she still was not as “sharp” as before those treatments, AR 1676.

         She went to Florida for part of the winter and told Dr. Ryan that she functioned relatively well there, despite issues with obtaining treatment. AR 1677 (notes indicating that “trip went pretty well” but describing problems obtaining medications and ECT); AR 1679-82. She said that once she returned and restarted ECT, she felt better even though she was “zonked out” from the treatments. AR 1683.

         Dr. Stuart Kutz, a psychologist, examined Ms. Guidry in May 2015 and reviewed some medical records. AR 849-55. He concluded her attention, concentration, persistence and pace were moderately to markedly impaired, and he questioned whether her memory and “perhaps other cognitive functions” were mildly impaired. AR 855. Dr. Kutz did not specify where he believed she fell on the spectrum from moderate to marked impairment. Id.

         Dr. Sara Sexton, a psychologist, reviewed some of Ms. Guidry's medical records in May 2015, as well as Dr. Kutz's opinion. She generally agreed with Dr. Kutz's assessment but opined that Ms. Guidry's impairments were on the moderate end of the spectrum rather than the marked end. AR 72, 73-75. She concluded that Ms. Guidry could do work that did not involve significant complexity or judgment, had limited interaction with the general public, and did not involve prolonged contact with co-workers or supervisors. AR 75.

         In August 2015, Ms. Guidry reported she was doing well, with more energy and fewer suicidal thoughts. AR 858-61; AR 1697-98. In October 2015, she was walking daily, feeling a “creative spark” for the first time in years, and trying to take an online course. AR 1701.

         In November 2015, Dr. Chitters completed a medical source statement. He opined that Ms. Guidry had some moderate and some marked impairment in understanding and memory, in sustaining concentration and persistence, and in social interaction. AR 1703-04.

         2. Physical Impairments

         Ms. Guidry has fibromyalgia, joint pain, lower back pain related to degenerative disc disease, and is obese. In May 2015, she saw Laura Moran, D.O., for an agency-ordered physical consultative examination. AR 840-45. Dr. Moran's examination findings and the imaging she reviewed revealed no significant abnormalities. AR 840, 842-45. Dr. Moran concluded that Ms. Guidry could alternate sitting, standing, and walking for eight hours a day, carry and lift about 20 pounds, bend (but not repeatedly), and do all daily self-care activities, and perform repetitive motion and fine motor manipulation with her hands. AR 845. At the administrative hearing, Ms. Guidry testified that nerve pain medication alleviated her fibromyalgia pain throughout the day. AR 45.

         B. Procedural History

         Ms. Guidry filed her claim for disability and disability insurance benefits with SSA in June 2014, alleging disability beginning May 1, 2014. AR 150-56. Ms. Guidry later amended the onset date to December 1, 2013. AR 43. After SSA initially denied her claim, AR 62-78, Ms. Guidry requested a hearing, AR 88. The hearing took place on December 18, 2015, before an ALJ. AR 37-61. On January 20, 2016, the ALJ denied Ms. Guidry's claim, concluding that Ms. Guidry was not disabled within the meaning of the Social Security Act. AR 17-36. Ms. Guidry asked SSA's Appeals Council to review the ALJ's decision. AR 12. On June 23, 2016, the Appeals Council denied review, AR 1-6, making the ALJ's decision the final decision of SSA, see Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). On August 19, 2016, Ms. Guidry timely filed this appeal. (ECF No. 1.) I have jurisdiction pursuant to 42 U.S.C. § 405(g).

         II. ...

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