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Jimenez v. Berryhill

United States District Court, D. Colorado

January 2, 2018

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



         Plaintiff Salvador T. Jimenez filed an application for Supplemental Security Income (“SSI”) benefits nearly eight years ago and now appeals, for the second time, the decision of the Acting Commissioner of Social Security (“Commissioner”) denying his application. Following Jimenez's first appeal, Magistrate Judge Michael E. Hegarty reversed and remanded the case on the basis that the Administrative Law Judge (“ALJ”) failed to sufficiently specify and explain his reasons for assigning various weight to the medical opinions regarding Jimenez's physical impairments. [See Administrative Record (“AR”) 545-46.]

         Jimenez now argues that, in his second decision, the ALJ did not properly weigh the opinions on his mental impairments and erred in not sufficiently including limitations for Jimenez's mental impairments in his residual functional capacity (“RFC”). Because the ALJ repeatedly failed to properly weigh medical opinions, and because his RFC findings are not supported by substantial evidence, I REVERSE and REMAND for an immediate award of benefits.


         To qualify for SSI, a claimant must be disabled and must be eligible based on his income and resources. 42 U.S.C. § 1381a. A claimant can only be found to be disabled “if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(B). Additionally, a claimant's physical or mental impairments must be “medically determinable” and “expected to result in death or [have] lasted or can be expected to last for a continuous period of not less than 12 months.” Id. § 1382c(a)(3)(A); 20 C.F.R. § 416.905. When a claimant has one or more physical or mental impairments, the Commissioner is required to consider the combined effects in making a disability determination. 42 U.S.C. § 1382c(a)(3)(G).

         “[T]he ALJ has a duty to ensure that an adequate record is developed during the [SSI] hearing consistent with the issues raised.” Wall v. Astrue, 561 F.3d 1048, 1063 (10th Cir. 2009) (quotation omitted). In evaluating disability, the ALJ must follow a five-step sequential protocol. 20 C.F.R. § 416.920(a)(4). Should the ALJ find at any step that the claimant is not disabled, the process need go no further. Id. The claimant bears the burden of proof regarding the first four steps, and the Commissioner must satisfy the fifth. Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). At step one, the ALJ must find that the claimant is not engaged in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(i). At step two, the ALJ must deem the claimed impairment to be severe, medically determinable, and of sufficient duration. Id. § 416.920(a)(4)(ii). At step three, the ALJ will consider whether the claimant's impairment meets or equals in severity one of those listed in 20 CFR Part 404, Subpart P, Appendix 1, and if it does, the ALJ will find the claimant to be disabled. Id. § 416.920(a)(4)(iii). Otherwise, the analysis moves on to the fourth step at which the ALJ must determine the claimant's residual functional capacity. Id. § 416.920(a)(4)(iv). Based on that RFC, the ALJ must find that the claimant cannot perform any of his past relevant work. Id. Finally, at step five, the Commissioner has the burden of showing that the claimant's RFC, age, education, and work experience would allow him to adjust to other work. Id. § 416.920(a)(4)(v). If the Commissioner cannot make such a showing, the claimant must be found to be disabled. Id.

         I must “review the Commissioner's decision to determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied.” Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). “Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citation omitted). “It requires more than a scintilla, but less than a preponderance.” Id. Moreover, “[e]vidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992) (citation omitted). In reviewing the Commissioner's decision, I may not reweigh the evidence or substitute my judgment for that of the agency, but must “meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Grogan, 399 F.3d at 1262 (citation omitted).


          Jimenez filed his application for SSI benefits on January 15, 2010. [AR 169-175.] He reported that he was limited in his ability to work by neck and lower back problems, numbness, shoulder pain, and depression. [AR 195.] After his application was denied, Jimenez requested a hearing before an ALJ. The ALJ found that Jimenez was not disabled and therefore not entitled to SSI benefits. [AR 14-25.] Because the Appeals Council denied review, the ALJ's decision, filed on March 19, 2012, became the Commissioner's final decision. [AR 1-5.] Jimenez sought judicial review of the decision, and Magistrate Judge Hegarty reversed and remanded the case on the basis that the ALJ failed to sufficiently specify and explain his reasons for weighing the medical opinions on physical impairments. [AR 545-46.] Remand proceedings before the same ALJ resulted in another unfavorable decision, filed on May 4, 2015, and the Appeals Council refused to take corrective action, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. [AR 468.] Jimenez now appeals the second denial of benefits, arguing that the ALJ did not properly weigh the opinions of Jimenez's mental impairments and erred in not sufficiently accounting for the mental limitations in his residual functional capacity findings. Jimenez raised similar issues in his first appeal before Magistrate Judge Hegarty, but the court had no need to address them after finding grounds for reversal in the ALJ's weighing of the opinions on physical impairments. [AR 545.]

         Medical Evidence

         Because Magistrate Judge Hegarty's order provides a detailed and chronological recitation of Jimenez's medical record leading up to May 2014, and because Jimenez's second appeal focuses on the ALJ's assessment of his mental impairments, I need only repeat the pertinent facts here.

         Jimenez was diagnosed with and began receiving treatment for depression in June 2009. [AR 254.] For his SSI application, Jimenez was referred to Dr. Brett Valette for a psychological evaluation on July 14, 2010. [AR 351.] Jimenez accused Dr. Valette of laughing at him during a previous appointment and said Valette “denied” him. [AR 351-52.] Dr. Valette objected and told Jimenez he would not agree to see him if Jimenez believed Valette was just going to laugh at him. Jimenez “got mad” and “left, ” and Dr. Valette was not able to complete the examination or provide a diagnosis. [Id.] Jimenez was then referred to Dr. Richard Madsen for a psychological evaluation on August 19, 2010. Dr. Madsen wrote that Jimenez's “ability to do work related activities is impaired, ” and as a result he would have difficulty “relating to peers, coworkers, supervisors, and the general public.” [AR 354-58.] Dr. Madsen noted Jimenez's “lifelong problems with . . . mood swings with depression and agitation, ” and concluded that he gets “explosive and assaultive” when agitated. [AR 358.] He further explained that Jimenez “has lost several jobs because of his anger management problems, ” and his “longest period of employment is only two to three month.” [Id.]

         State agency psychologist Gayle Frommelt evaluated the case record, including Dr. Madsen's examination report, and issued an RFC assessment on August 27, 2010. She indicated moderate limitations in both Jimenez's “ability to get along with coworkers” and his “ability to accept instructions and respond appropriately to criticism from supervisors.” [AR 70.] At the end of the RFC assessment form, Dr. Frommelt concluded that Jimenez “retains the ability to follow simple instructions, sustain ordinary routines and make simple decisions. He can manage social interactions that are not frequent or prolonged. He should have limited contact [with the general] public.” [Id.]

         In December 2010, Jimenez underwent a “SyCare Initial Emergency Assessment” with mental health counselor Wayne Monk. Mr. Monk diagnosed Jimenez with post-traumatic stress disorder and depression. [AR 421, 426.]

         Jimenez received mental health treatment at Spanish Peaks Mental Health Center (“Spanish Peaks”) beginning in February 2011. A psychiatric mental health nurse practitioner, Mark Jankelow, diagnosed Jimenez with Recurrent Major Depressive Disorder; Psychosis; Possible Personality Disorder; and Hypertension. [AR 419.] Mr. Jankelow reported the same diagnosis on Jimenez's subsequent visits in June and August, 2011. [AR 412-13.] Mr. Jankelow completed an RFC evaluation for Jimenez on August 1, 2011, and ranked him with moderate to marked limitations in “understanding and memory”; mostly moderate to extreme limitations in “sustained concentration and persistence”; marked limitations in “social interaction”; and moderate to marked limitations in “adaptation.” ...

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