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Hawkes v. Berryhill

United States District Court, D. Colorado

November 3, 2017

NANCY BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.


          Marcia S. Krieger, Judge

         THIS MATTER comes before the Court as an appeal from the Commissioner's Final Administrative Decision (“Decision”) determining that the Plaintiff Jennifer Hawkes is not disabled within the meaning of §§216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. Having considered all of the documents filed, including the record (#11), the Court now finds and concludes as follows:


         The Court has jurisdiction over an appeal from a final decision of the Commissioner under 42 U.S.C. § 405(g). Ms. Hawkes sought disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act, respectively, based on mental and physical impairments that rendered her unable to work as of March 15, 2013.[1] The state agency denied her claim. She requested a hearing before an Administrative Law Judge (“ALJ”). After the hearing, the ALJ issued an unfavorable decision that Ms. Hawkes was not disabled. Ms. Hawkes appealed to the Appeals Council, which denied her request for review, making the ALJ's determination the final decision of the Commissioner. Ms. Williams timely appealed to this Court.


         The Court offers a brief summary of the facts here and elaborates as necessary in its analysis.

         Ms. Hawkes was born on November 21, 1985. At the time of the Decision, she was 30 years old. She has a limited education and work history, having only graduated from high school, taken only two college-level courses, and worked part-time as a waitress. She contends that a combination of mental and physical impairments prevent her from working.

         Ms. Hawkes has a long history of mental health impairments. When she was 12 years old, she began cutting herself. At 15, she was diagnosed with bipolar disorder. After being raped at 17, she began suffering from post-traumatic stress disorder. A few years later, she attempted suicide. After giving birth to two children, she suffered from postpartum depression. She has continued to suffer from depression and reports that she has had auditory and visual hallucinations. She has also been diagnosed with anxiety, obsessive compulsive disorder, and attention deficit hyperactivity disorder.

         In addition to her mental impairments, she suffers from physical health impairments. In 2012, she was diagnosed with fibromyalgia and chronic pain. In 2013, she began experiencing migraine headaches, fatigue, and sleep disturbances. She has also been diagnosed with degenerative disc disease of the cervical spine.

         Treatment and Opinions by Treating Professionals

         Ms. Hawkes received intermittent mental health treatment during her teenage years and early twenties. But in early 2013, she began receiving regular mental health treatment at Aspen Pointe. Shortly thereafter, she was hospitalized briefly because she was suicidal and having command hallucinations. Aspen Pointe treated her through medication and therapy. After six months, she experienced a reduction of symptoms and asked to be treated with medication, only. In November 2013, she reported that she was not suffering from depression and had not had any hallucinations. She told Aspen Pointe that “she runs around a lot, running errands for her mother while kids are in school.” She was also baking for leisure and exercising. But, in January 2014, she reported that she was depressed and got angry easily, was sleeping more, was paranoid, and had had a visual hallucination. Two months later, she reported that she was not depressed, had not had hallucinations, delusions, or paranoia, and was busy helping her mother and father during the day.

         In March 2014, Ms. Hawkes stopped treatment by Aspen Pointe, and began treatment with Psychiatric-mental Health Nurse Practitioner Sandra F. Yaney. Ms. Yaney stated that when Ms. Hawkes first began receiving treatment from her, she was “in a manic and paranoid state, with high distractibility and pressured speech. She was sleeping about 5 hours per day, had obsessive thoughts, ritualistic behaviors, no appetite, and described her energy as ‘great'.” Over the course of the next year, Ms. Yaney worked with Ms. Hawkes to find an effective medication regimen. During that year, she observed Ms. Hawkes “severely depressed, manic, in pain, and picking her skin to the point of excoriation.” By March 30, 2015, Ms. Yaney believed that they had determined what medications would best assist Ms. Hawkes. However, she opine

Now that Ms. Hawkes has finally found a helpful and comprehensive med regimen, I believe that she could benefit from a thorough vocational rehab assessment. If she continues to remain stable; I believe that she could engage in a home-based business of some kind with minimal social interaction. However, I think it is unlikely that she will be able to derive sufficient income from this to support herself and her two children.

         Ms. Yaney retired, and Ms. Hawkes began receiving treatment from Psychiatric/Mental Health Nurse Practitioner Mark Jankelow. She visited him approximately six times between June 8, 2015 and September 30, 2015. On October 8, 2015, Mr. Jankelow filled out a Mental Residual Functional Capacity Statement for Ms. Hawkes. In it, he opined that Ms. Hawkes would be off task more than 30% of the time during an eight-hour workday, would be absent four days or more each month, and would not be able to complete an eight-hour workday three days each month. He said, “It would be extremely difficult for Ms. Hawkes to function in a work environment due to her disabilities.”

         Concurrently with her mental health treatment, Ms. Hawkes was receiving treatment for her physical limitations. Dr. Divakara Kedlaya diagnosed her with fibromyalgia and chronic pain in May 2012 and provided her with pain management treatment until she began seeing Physician Assistant Peter Brumlik, Ph.D., who was working under the direction of Dr. Wiley J. Jinkins. Ms. Hawkes also complained of migraine headaches, and a radiology report revealed that she had mild disc narrowing at ¶ 5-C6. On October 19, 2015, Dr. Brumlik completed a Functional Limitations Statement (Physical) for Ms. Hawkes. He opined that she could only sit, stand, or walk for less than two hours during an eight-hour workday, was precluded from working forty hours per week on a regular and continuing basis, and would be absent more than two days per month.

         Opinions by Non-treating Professionals

         Dr. Lillian M. Moeller performed a psychological evaluation on Ms. Hawkes. She reviewed Ms. Hawkes' relevant medical records and also conducted an in-person interview with her. On July 7, 2014, she opined,

Based both on clinical interview and on personality testing, the patient shows very significant mental illness, including Bipolar Affective Disorder, Substance Abuse Disorder, Posttraumatic Stress Disorder, and a Personality Disorder. Additionally, the patient experiences chronic pain from fibromyalgia. Both her depression and chronic pain severely limit her ability to be gainfully employed and I doubt that she will ever return to even part-time employment.

         Dr. Ronald Jendry performed an independent medical examination on Ms. Hawkes on April 9, 2015. After reviewing her medical records and performing a medical examination, he opined that she could sit without limitations, could stand for six hours, and could walk for four to six hours during an eight-hour workday. He estimated that she could lift fifteen or more pounds frequently and twenty to twenty-five pounds occasionally. He also opined that she could bend, stop, crouch, and/or crawl frequently and could reach overhead, push, pull, handle, grasp, finger, and/or feel without limitations.

         Finally, Dr. Anthony Gottlieb, a State agency psychiatrist, reviewed Ms. Hawkes' file but did not personally examine her. He opined that she suffered from multiple, moderate limitations on abilities relevant to whether she could perform either her past relevant work or other substantial gainful work existing in the national economy. However, he ultimately opined that she could work notwithstanding those moderate limitations.


         To determine whether Ms. Hawkes is disabled[2], the ALJ analyzed her case pursuant to the sequential five-step inquiry.[3] At step one, the ALJ found that Ms. Hawkes had not worked or engaged in substantial gainful activity after the alleged onset date. At step two, the ALJ found Ms. Hawes had medically severe impairments: affective disorder (bipolar disorder), anxiety disorder, fibromyalgia, obesity, and chronic pain disorder. At step three, the ALJ found that Ms. Hawkes' impairments did not equal the severity of a listed ...

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