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Laflan v. Berryhill

United States District Court, D. Colorado

July 19, 2017

VIRGINIA F. LAFLAN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          ORDER

          MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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.

         BACKGROUND

         I. Plaintiff's Conditions

         Plaintiff 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.]

         A. Mental Conditions

         On 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].

         The next record concerning Plaintiff's mental impairments occurs on April 22, 2013, when Plaintiff reported to Community Reach Center (“CRC”).[1] [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. [Id.]

         Plaintiff 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].

         On 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].

         On 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].

         Plaintiff 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. [Id.]

         Plaintiff 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].

         After 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].

         On 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].

         B. Physical Conditions

         The 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].

         The 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.[2] 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.[3] [AR 826-27]. On August 21, 2014, Plaintiff began treatment for neuropathy at the University of Colorado Hospital's outpatient clinic. [AR 1347-58].

         On 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].

         II. Procedural History

         Plaintiff 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 553-65, 570-73].

         On 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].

         On 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].

         The SSA 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. ยง 416.1481. Plaintiff timely filed her Complaint with this ...


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