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Vallejo v. Berryhill

United States District Court, D. Colorado

October 19, 2017

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


          Marcia S. Krieger, Chief Judge

         THIS MATTER comes before the Court pursuant to the Court of Appeals' Order (# 41)

         directing this Court “address [Ms.] Vallejo's remaining arguments and determine if the Commissioner applied the correct legal standards and if substantial evidence in the administrative record . . . supports the Commissioner's final decision.” In doing so, the Court has once again considered the Administrative Record (# 11) and the parties' briefs (# 14, 15, 16).

         The Agency Proceedings

         Ms. Vallejo applied for Social Security Disability Insurance benefits in 2010. When her claim proceeded to adjudication by an ALJ, the evidence in the record consisted of the testimony of Ms. Vallejo, plus the opinions of a consulting physician, a state-agency physician, an examining psychologist, and a state-agency psychologist; Ms. Vallejo did not offer any evidence from a treating physician at that time. On March 29, 2012, the ALJ denied her application for benefits.

         Thus, the Court finds that the record reflects as follows. At the time of Ms. Vallejo's application, she was 38 years old, with an 11th grade education and no past relevant work experience. She suffers from a variety of physical impairments, including pain in the left tibia and right ankle, along with a deformity of her right clavicle. But her primary limitations arise from mental impairments, including a mood disorder, bipolar disorder, and personality disorder. From 2009 to 2011, she received intermittent mental health treatment from Dr. McNabb, along with prescriptions for Effexor and Depakote.

         In 2009, Ms. Vallejo underwent a psychiatric consultation with Dr. Madsen. He diagnosed her with Bipolar Disorder and impaired intellectual functioning. He assigned her a GAF score of 50-55, demonstrating moderate impairment. He concluded that “her ability to do work-related activities continue to be impaired at a marked level. She will have difficulty maintaining a regular work schedule, focusing and concentrating on work, relating to peers, coworkers, supervisors, and the general public.” In July 2010, Dr. Suyeishi, a state agency consulting psychologist, opined that Ms. Vallejo could follow simple instructions, sustain ordinary routines, and make simple work-related decisions. He further opined that she could not work closely with supervisors or coworkers, but could accept infrequent supervision or coworker interaction.

         In September 2010, Dr. Summerlin conducted a consultative physical examination of Ms. Vallejo. He determined that she could currently stand and walk for periods of up to four hours, but that that limitation would lift in four to six months as she healed from recent injuries. He concluded that she had no limitations in lifting, carrying, sitting, or manipulating objects. Similarly, that same month, Dr. LoGalbo, a state agency reviewing physician, also opined that Ms. Vallejo could lift and carry 25 lbs. frequently and 50 lbs. occasionally, could sit for 6 hours per day, and stand or walk for 4 hours per day.

         Ms. Vallejo testified that she can sit for one hour before needing to stand and move around, and that she can stand for an hour before needing to sit back down. She testified that she can lift five pounds, that she has difficulty sleeping, that she spends most of her time watching TV or talking on the phone with friends. Occasionally, she cooks, accompanies her mother on shopping trips, goes to church, plays bingo, or goes for a walk.

         Based on this evidence, The ALJ concluded that Ms. Vallejo could perform unskilled work, with minimal contact with coworkers and the public, sitting for up to six hours per day and standing or walking for up to four hours per day. Based on these limitations, the ALJ determined that Ms. Vallejo could perform the work of a silverware wrapper, a retail marker, or possibly a housekeeper. The ALJ inquired of a vocational expert whether that same work would be available with the additional limitation that Ms. Vallejo could not sustain concentration, persistence, and pace for a 40-hour workweek, to which the vocational expert answered that no meaningful work would be available to Ms. Vallejo with that further limitation.

         Ms. Vallejo appealed the ALJ's decision to the Appeals Council. Along with that appeal, she also submitted a Residual Functional Capacity Evaluation (“RFC”) from Dr. Jerald Ratner, her treating physician from 2011 to 2012. Dr. Ratner opined that Ms. Vallejo suffered from Bipolar Disorder, that she had no limitations in her ability to carry out very short and simple instructions, but that she had moderate limitations in her ability to remember work-like procedures and extreme limitations in her ability to maintain attention and concentration, to keep a schedule and maintain attendance, to work with others without distraction, and to maintain a workday without interruption and work at a consistent pace. He also opined that Ms. Vallejo had extreme limitations in dealing with the public or coworkers and with accepting instructions and supervision, but only slight limitations in the ability to ask questions and request assistance. Finally, he opined that she was incapable of attending to full-time work and stated that she would be off-task for 100% of the work week. Armed with Dr. Ratner's new RFC opinion, Ms. Vallejo sought review of the ALJ's decision by the Appeals Council.

         On March 8, 2013, the Appeals Council denied her request for review. In a form order, it stated “We found no reason under our rules to review the Administrative Law Judge's decision. Therefore, we have denied your request for review.” The form also contained an indication of any additional evidence that it had considered (beyond the record before the ALJ), and the Appeals Council indicated that it had reviewed Dr. Ratner's RFC. Thus, Dr. Ratner's opinion became part of the record.

         Court proceedings

         Ms. Vallejo then commenced the instant appeal. After reviewing the briefs and record and hearing oral argument on July 23, 2014, this Court reversed the Commissioner's decision and remanded the matter to the Commissioner for further proceedings. The Court explained that “the dispositive issue here is whether there was error by the Appeals Council in not properly articulating its assessment of an opinion . . . by a treating physician [ ] that was submitted post-hearing.” The Court found that the Appeals Council's failure to articulate any reasons for rejecting Dr. Ratner's RFC ...

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