United States District Court, D. Colorado
VIRGINIA F. LAFLAN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
Virginia F. Laflan, 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, and
her application for supplemental security income benefits
(“SSI”), 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). The
parties have not requested oral argument, and the Court finds
it would not materially assist in the determination of this
appeal. Because the ALJ incorrectly applied the law in
determining that Plaintiff's impairments do not meet one
of those listed in 20 C.F.R. Part 404, Subpart P, Appendix 1,
the Court reverses the decision of the ALJ and remands this
case to the Commissioner for further proceedings.
was born on November 22, 1985; she was twenty-six years old
when she filed her application for DIB and SSI. [AR 260,
262]. Plaintiff claims she became disabled on January 1, 1995
due to mental and physical impairments. [Id.]
February 1, 2011, Dr. Mac Bradley performed a
psychopathologic assessment on Plaintiff. [AR 358-62]. Dr.
Bradley noted that Plaintiff “was alert and
attentive” and “could hear and understand
conversational speech.” [AR 359]. After Dr. Bradley
administered an IQ test, he diagnosed Plaintiff with
dysthymic disorder and borderline intellectual functioning.
[AR 360-61]. Notwithstanding this diagnosis, Dr. Bradley
concluded that Plaintiff's “ability to obtain
productive employment, without assistance, is not
impaired.” [AR 362].
next record concerning Plaintiff's mental impairments
occurs on April 22, 2013, when Plaintiff reported to
Community Reach Center (“CRC”). [AR 983].
Plaintiff stated that she struggles with anxiety, experiences
difficulty sleeping, and has symptoms of post traumatic
stress disorder (“PTSD”). [AR 984]. On May 6,
2013, CRC completed a treatment plan for Plaintiff, which
noted that CRC would assist Plaintiff with her “anxiety
and depressive symptoms.” [AR 1003]. On the same day,
Plaintiff had an appointment with Blake Roberts, a licensed
professional counselor. [AR 1077]. Plaintiff reported that
she was diagnosed with bi-polar disorder in elementary school
and generally had a “horrible” childhood.
returned to CRC for a regularly scheduled appointment on May
22, 2013. [AR 1078]. The professional counselor noted that
Plaintiff “made progress towards opening up in therapy
and sharing her concerns. She endorses symptoms consistent
with PTSD and seems to be triggered by recent events . . .
.” [Id.] After this meeting, Plaintiff stopped
scheduling appointments at CRC for nearly a year, because
Plaintiff's counselor informed her that she cannot bring
her youngest child to her appointments. [AR 834].
August 23, 2013, Plaintiff reported to Salud Family Health
Centers for a consultation regarding her behavioral health
needs. [AR 815]. Dr. Carla Pallares referred Plaintiff to the
Pennock Center for Therapy and encouraged Plaintiff to make a
medical appointment to manage her medications. [Id.]
On August 26, 2013 and September 4, 2013, Plaintiff visited
Dr. Lauren Ramnarine, who prescribed Plaintiff with
medication for anxiety, depression, and PTSD. [AR 776]. Dr.
Ramnarine continued to see Plaintiff for regular medication
management appointments. [AR 752, 755]. At one of these
follow-ups, Dr. Ramnarine assessed Plaintiff with
“depress psychosis-mild.” [AR 784-85].
September 5, 2013, Plaintiff reported to the Pennock Center
for an initial assessment. [AR 773-74]. Among other issues,
Plaintiff requested treatment for anxiety, agitation, hyper
vigilance, flashbacks, and paranoia. [Id.]
Furthermore, the treatment notes from a follow-up appointment
with Dr. Ramnarine indicate Plaintiff was diagnosed with
obsessive compulsive disorder at the Pennock Center. [AR
753]. Rachel Morici, a licensed professional counselor,
created a treatment plan for Plaintiff, which included
teaching interpersonal effectiveness strategies and using
behavioral therapy materials to teach self-soothing. [AR
775]. Beginning on September 5, 2013, Ms. Morici scheduled
weekly treatment sessions with Plaintiff, some of which
Plaintiff failed to attend. [AR 776-80].
returned to CRC for treatment on May 21, 2014. [AR 1005]. CRC
created a twelve-month treatment plan, which included
individual therapy sessions and meetings with psychiatrists
for medication adjustments. [AR 1007-08, 1079]. At one of the
therapy sessions, Plaintiff reported hearing a derogatory
male voice that largely subsides when she takes her
medication. [AR 1028]. Additionally, Plaintiff stated she
sometimes sees a shadow in her peripheral vision.
continued with her regular out-patient treatment sessions
until August 29, 2014, when she reported to a voluntary
inpatient treatment program at CRC. [AR 1094]. During her
approximately one-month stay at this program, Plaintiff
participated in group and individual therapy sessions and
medication monitoring. [AR 1036-38, 1094-1106]. During one of
the group sessions, Plaintiff stated that she cannot read or
write well and is often embarrassed, because her young
children can read better than she. [AR 1096]. Plaintiff had
mixed progress during the program. At times, Plaintiff
isolated herself in her room for the majority of the day, [AR
1103], while on other days Plaintiff engaged in treatment
sessions and contributed to the group discussions. [AR 950].
By September 16, 2014, Plaintiff stated she was using
multiple coping skills, such as calling a friend, journaling,
singing, and praying. [AR 970]. Plaintiff discharged from the
inpatient program on September 23, 2014. [AR 883].
her discharge, Plaintiff regularly visited CRC for refills of
her medication, but only occasionally attended group and
individual therapy sessions. [AR 895, 899, 904-926, 977-78].
On April 7, 2015, a case manager at CRC informed Plaintiff
that if she did not attend therapy sessions more frequently,
CRC would close her file. [AR 927]. Plaintiff subsequently
resumed with individual counseling. [AR 930, 934, 936].
August 31, 2015, Plaintiff had a follow-up appointment with
Susan Ponder at CRC. [AR 1062-66]. Plaintiff reported that
“she is doing pretty good other than getting easily
side tracked.” [AR 1063]. She stated that her current
level of depression is a six out of ten, and her “mood
ups and downs have improved.” [Id.] On
September 14, 2015, Plaintiff was diagnosed with borderline
intellectual functioning. [AR 1001]. Plaintiff continued to
attend individual therapy sessions and receive medication at
CRC at least until December 4, 2015. [AR 938-44].
relevant portion of Plaintiff's medical history regarding
her physical impairments begins on March 18, 2011, when she
reported to the emergency department at the University of
Colorado Hospital. [AR 1274-83]. Plaintiff complained of
numbness and tingling in her arms. [AR 1274]. On July 10,
2011, Plaintiff returned to the emergency department, where
she reported numbness, migraines, and neuropathy. [AR 1286].
The hospital performed a head CT scan, which had normal
results. [AR 1287]. Plaintiff again reported to the
University of Colorado Hospital on March 6, 2012. [AR
1304-08]. Plaintiff complained of worsening headaches, blurry
vision, and increased fatigue as a result of being assaulted
two days prior. [AR 1308].
next record concerning Plaintiff's physical impairments
occurred on May 8, 2013, when Plaintiff reported to Salud
Family Health Centers with complaints of numbness and
tingling in her hands and feet. [AR 819]. Kristin Burden,
P.A., treated Plaintiff for paresthesia. On May 14, 2014,
during an appointment with Dr. Ramnarine, Plaintiff reported
that she had been feeling regular arm and leg numbness for
the past eight months, which causes her to drop items out of
her left hand. [AR 831]. Dr. Ramnarine referred Plaintiff to
a neurologist for nerve conduction tests. [AR 833]. After
reviewing the results of these tests, Dr. Ramnarine diagnosed
Plaintiff with peripheral neuropathy. [AR 826-27]. On August 21,
2014, Plaintiff began treatment for neuropathy at the
University of Colorado Hospital's outpatient clinic. [AR
October 22, 2014, Plaintiff visited the outpatient clinic
because of increased migraines. [AR 1383]. The doctor ordered
a brain MRI, which revealed generally unremarkable results.
[AR 1386, 1426-30].
alleges she first became disabled on January 1, 1995. [AR
260]. The SSA initially denied Plaintiff's application
for DIB and SSI on June 25, 2012. [AR 168-69]. After a
hearing, an ALJ issued an opinion on June 5, 2013,
determining that Plaintiff is not disabled. [AR 25-36].
According to the ALJ, although Plaintiff has severe
impairments, they do not meet the severity of one of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix
1. [AR 29-31]. Specifically, the ALJ held that Plaintiff does
not meet Listing 12.05 for mental retardation, because the
evidence does not document significant deficits of adaptive
functioning. [AR 30-31]. Furthermore, the ALJ found that,
despite Plaintiff's limitations, she is capable of
performing her past work as a dining room attendant, a deep
fat fry cook, and a baker's helper. [AR 34-35]. After the
SSA Appeals Council denied Plaintiff's request for
review, Plaintiff appealed to this District. See [AR
September 14, 2015, the Honorable Michael J. Watanabe
reversed the ALJ's decision. [AR 553-65]. According to
Judge Watanabe, the ALJ's holding that Plaintiff does not
meet Listing 12.05 was not based on substantial evidence,
because the medical opinions on which the ALJ relied do not
“offer support for the ALJ's finding.” [AR
559]. Accordingly, Judge Watanabe remanded the case to the
ALJ for “further fact-finding on the sole question of
whether [Plaintiff] has ‘deficits in adaptive
functioning' sufficient to meet Listing 12.05's
capsule definition.” [AR 561].
February 23, 2016, the ALJ held a subsequent hearing. [AR
610]. Plaintiff and a vocational expert testified at the
hearing. [AR 517-50]. The ALJ issued her second decision
denying Plaintiff's application for DIB and SSI on May
10, 2016. [AR 493-508]. Although the ALJ found that the
evidence demonstrated deficits in adaptive functioning, the
ALJ concluded they were not caused only by Plaintiff's
subaverage intellectual functioning. [AR 500]. As a result,
the ALJ held that Plaintiff does not meet Listing 12.05.
[Id.] Furthermore, the ALJ found jobs exist in the
national economy that Plaintiff can perform. [AR 507].
Accordingly, the ALJ determined Plaintiff was not disabled
from January 1, 1995 to the date of her decision. [AR 508].
Appeals Council subsequently denied Plaintiff's request
for review, making the SSA Commissioner's denial final
for the purpose of judicial review. [AR 482-85]; see
20 C.F.R. § 416.1481. Plaintiff timely filed her
Complaint with this ...