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Smith v. Berryhill

United States District Court, D. Colorado

December 1, 2017

MATTHEW DONALD LEROY SMITH, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER REVERSING THE COMMISSIONER'S DECISION

          Marcia S. Krieger United States District Court Judge.

         THIS MATTER comes before the Court on the Plaintiff's Complaint (# 1), the Plaintiff's Opening Brief (# 14), the Defendant's Response (# 15), and the Plaintiff's Reply (# 16). For the following reasons, the Commissioner's decision is reversed and the matter is remanded for further proceedings.

         I. JURISDICTION

         The Court has jurisdiction over an appeal from a final decision of the Commissioner under 42 U.S.C. § 405(g).

         II. BACKGROUND

         A. Procedural History

         Matthew Smith seeks judicial review of a final decision by the Commissioner denying his claims for supplemental security income (SSI) under the Social Security Act. In October 2007, Mr. Smith filed for SSI, claiming he became disabled in October 2006. Tr. at 322-24. Though the Appeals Council twice remanded the ALJ's decision for further proceedings, then denied review of the ALJ's decision dated July 29, 2016, which became the final decision of the Commissioner.

         B. Factual Background

         At the time of his alleged onset of disability in 2006, Mr. Smith was 31 years old. Tr. at 322. He was previously employed as a dishwasher and a warehouse supervisor. Tr. at 382. The Court summarizes only the evidence relevant to Mr. Smith's mental impairments, noting that there is no opinion from any treating source.

         In January 2008, Mr. Smith saw Dr. Richard Madsen, a consulting examiner, for a psychological evaluation. Tr. at 568-70. Dr. Madsen observed Mr. Smith to be oriented to person, place, and time, and able to recall the date and the name of the president. Tr. at 569. He found Mr. Smith's affect to be anxious and depressed but nonpsychotic. Tr. at 569. Mr. Smith was able to recall personal information and count accurately, but his ability to perform arithmetic functions in his head was impaired; Dr. Madsen observed his short-term auditory memory, intellectual functioning, and abstract reasoning ability to be average. Tr. at 569-70. Dr. Madsen found his persistence and pace to be adequate. Tr. at 570. Based on his examination, Dr. Madsen diagnosed Mr. Smith as suffering from major depression, recurrent and moderate without psychotic features, and personality disorder. Tr. at 570. He concluded that Mr. Smith's cognitive functioning was average although he had some difficulty with concentration, and that his depression interfered with his ability to focus and his energy level. Tr. at 570. As a result, Mr. Smith's ability to maintain a regular work schedule “would be impaired.” Tr. at 570.

         In October 2009, Dr. Jose Vega also performed a consultative examination. Tr. at 634- 38. Dr. Vega observed Mr. Smith to be oriented to time, place, and person, with a blunted affect and depressed mood. Tr. at 636. Mr. Smith could identify the president and Colorado governor but misidentified the vice president. Tr. at 636. He had some difficulty spelling and performing numerical exercises correctly. Tr. at 636-37. Mr. Smith showed some impairment with short-term memory, recalling three out of five words after five minutes. Tr. at 637. Dr. Vega observed that although Mr. Smith recognized what constitutes socially appropriate behavior but responded in ways that indicate poor judgment. Tr. at 637. His appearance was “minimally adequate”. Tr. at 637. Based on his examination, Dr. Vega diagnosed Mr. Smith as suffering from a mood disorder and pain disorder associated with psychological factors. Tr. at 638. He opined that Mr. Smith had problems with sustained concentration and persistence, as well as impulse control and social interaction with others. Tr. at 637. As a result, Mr. Smith would have problems maintaining employment “for any extended period of time.” Tr. at 638.

         Dr. Vega also completed a mental RFC evaluation. Tr. at 632-33. He opined that Mr. Smith's understanding and memory ranged from moderately limited in terms of understanding and remembering simple instructions to markedly/extremely limited in understanding and remembering detailed instructions. Tr. at 632. With regard to concentration and pace, Dr. Vega stated that he was moderately limited in carrying out simple instructions but markedly to extremely limited in all other respects. Tr. at 632. As to social interaction, Dr. Vega opined that Mr. Smith was markedly to extremely limited in all respects. Tr. at 633. And as to adaptation to changes in the workplace, Dr. Vega again stated that Mr. Smith was markedly to extremely limited in all respects. Tr. at 633.

         Dr. Madsen performed another consultative examination in July 2011. Tr. at 641-46. Dr. Madsen again observed Mr. Smith to be oriented to person, place, and time, and able to recall the date and the name of the president. Tr. at 644. He found Mr. Smith's affect to be blunted and consistent with a depressed mood. Tr. at 644. His thought content was logical and relevant, and his speech was slow, quiet, and without energy. Tr. at 644. Mr. Smith was able to recall personal information and count accurately, but his ability to perform arithmetic functions in his head was again impaired. Tr. at 645. This time, Dr. Madsen observed his short-term auditory memory to be impaired and his intellectual functioning to be in the low average to borderline range, although Mr. Smith's abstract reasoning ability remained functional. Tr. at 645. Dr. Madsen found his persistence adequate, but his pace was slow this time. Tr. at 645. Based on his examination, Dr. Madsen diagnosed Mr. Smith as suffering from major depressive disorder, recurrent and moderate to severe with psychotic features at times, panic disorder with agoraphobia, posttraumatic stress disorder, and developmental learning disorder. Tr. at 645. He concluded that Mr. Smith's depression and panic disorder was likely keeping him from seeking and/or keeping employment, and that his cognitive functioning indicates he may have a learning disability. Tr. at 646. As a result, Dr. Madsen again opined that Mr. Smith's ability to perform work-related activities was impaired. Tr. at 646.

         In conjunction with the second consultative examination, Dr. Madsen completed a medical source statement indicating that Mr. Smith's ability to understand and remember simple instructions, carry out simple instructions, and make judgments on simple work-related decisions was mildly limited. Tr. at 648. However, Dr. Madsen opined that these abilities were markedly limited with regard to complex instructions and ...


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