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Sommers v. Berryhill

United States District Court, D. Colorado

February 27, 2018

NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.


          Scott T. Varholak, United States Magistrate Judge

         This matter is before the Court on Plaintiff Adrienne E. Sommers' Complaint seeking review of the Commissioner of Social Security's decision denying Plaintiff's application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act (“SSA”), 42 U.S.C. §§ 401 et seq., and 1381-83c, respectively. [#1] The parties have both consented to proceed before this Court for all proceedings, including the entry of final judgment, pursuant to 28 U.S.C. § 636(c) and D.C.COLO.LCivR 72.2. [#11] The Court has jurisdiction to review the Commissioner's final decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). This Court has carefully considered the Complaint [#1], the Social Security Administrative Record [#9], the parties' briefing [##17, 18, 19], and the applicable case law, and has determined that oral argument would not materially assist in the disposition of this appeal. For the following reasons, the Court REVERSES the Commissioner's decision and REMANDS for further proceedings.


         A. Five-Step Process for Determining Disability

         The Social Security Act defines disability as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.”[2] 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). “This twelve-month duration requirement applies to the claimant's inability to engage in any substantial gainful activity, and not just his underlying impairment.” Lax, 489 F.3d at 1084. “In determining whether an individual's physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility . . ., the Commissioner [ ] shall consider the combined effect of all of the individual's impairments without regard to whether any such impairment, if considered separately, would be of such severity.” 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G).

         “The Commissioner is required to follow a five-step sequential evaluation process to determine whether a claimant is disabled.” Hackett v. Barnhart, 395 F.3d 1168, 1171 (10th Cir. 2005). The five-step inquiry is as follows:

1. The Commissioner first determines whether the claimant's work activity, if any, constitutes substantial gainful activity;
2. If not, the Commissioner then considers the medical severity of the claimant's mental and physical impairments to determine whether any impairment or combination of impairments is “severe;”[3]
3. If so, the Commissioner then must consider whether any of the severe impairment(s) meet or exceed a listed impairment in the appendix of the regulations;
4. If not, the Commissioner next must determine whether the claimant's residual functional capacity (“RFC”)-i.e., the functional capacity the claimant retains despite his impairments-is sufficient to allow the claimant to perform his past relevant work, if any;
5. If not, the Commissioner finally must determine whether the claimant's RFC, age, education and work experience are sufficient to permit the claimant to perform other work in the national economy.

See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005); Bailey v. Berryhill, 250 F.Supp.3d 782, 784 (D. Colo. 2017). The claimant bears the burden of establishing a prima facie case of disability at steps one through four, after which the burden shifts to the Commissioner at step five to show that claimant retains the ability to perform work in the national economy. Wells v. Colvin, 727 F.3d 1061, 1064 n.1 (10th Cir. 2013); Lax, 489 F.3d at 1084. “A finding that the claimant is disabled or not disabled at any point in the five-step review is conclusive and terminates the analysis.” Ryan v. Colvin, 214 F.Supp.3d 1015, 1018 (D. Colo. 2016) (citing Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 801 (10th Cir. 1991)).

         B. Standard of Review

         In reviewing the Commissioner's decision, the Court's review is limited to a determination of “whether the Commissioner applied the correct legal standards and whether her factual findings are supported by substantial evidence.” Vallejo v. Berryhill, 849 F.3d 951, 954 (10th Cir. 2017) (citing Nguyen v. Shalala, 43 F.3d 1400, 1402 (10th Cir. 1994)). “With regard to the law, reversal may be appropriate when [the Commissioner] either applies an incorrect legal standard or fails to demonstrate reliance on the correct legal standards.” Bailey, 250 F.Supp.3d at 784 (citing Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir.1996)).

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (quoting Lax, 489 F.3d at 1084). “Evidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion.” Grogan, 399 F.3d at 1261-62 (quoting Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992)). The Court must “meticulously examine the record as a whole, including anything that may undercut or detract from the [Commissioner's] findings in order to determine if the substantiality test has been met.'” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (quotation omitted). The Court, however, “will not reweigh the evidence or substitute [its] judgment for the Commissioner's.” Hackett, 395 F.3d at 1172.


         Plaintiff was born in 1979. [AR 140][4] She completed four or more years of college, a Department of Veterans Affairs (“VA”) vocational rehabilitation program, and earned her master's degree in both business and diplomacy and international commerce. [AR 188, 475] Plaintiff is able to communicate in English. [AR 186] On October 22, 2013, Plaintiff filed a Title II application for DIB and a Title XVI application for SSI. [AR 140, 165] In both applications, Plaintiff claimed a disability onset date of May 5, 2013, [5] and thus was 33 years old at the time of the alleged onset. [AR 140] Plaintiff claims disability based upon predominantly mental impairments, including, but not limited to, major depressive disorder, anxiety disorder, borderline personality disorder, dysthymic disorder, and post-traumatic stress disorder (“PTSD”). [AR 187]

         Plaintiff is a veteran of the United States Army, where she served as an officer from approximately 2001 to 2005. [AR 357] She also worked in a variety of other positions prior to the alleged disability onset date, including as an account representative for a human resources (“HR”) recruiting firm and economic analyst for a government contracting business. [AR 189] Plaintiff worked as an HR specialist for the Federal Government at the Bureau of Reclamation from October 2012 until October 2013. [Id.; see also AR 237] Most recently, Plaintiff worked intermittent part-time positions at an art supply store, from approximately February 2014 through June of 2014, and at a wine shop from July 2014 through approximately October 2014. [AR 18, 697]

         A. Medical Background

         Plaintiff has a history of borderline personality disorder and major depressive disorder. [See, e.g., AR 520, 601] The mental health treatment records before this Court date back to October 2012.[6] [AR 605] Licensed Clinical Social Worker Rachel Bensinger saw Plaintiff for psychotherapy sessions throughout the latter part of 2012. [AR 597, 603, 605-07] Bensinger noted Plaintiff's paranoia with respect to her beliefs that individuals at work were sending embarrassing emails about her, but also indicated that Plaintiff was complying with her medications and exercising regularly. [AR 597, 606] Plaintiff's anxiety increased when she began a new job at the end of 2012. [AR 597]

         In May 2013, Plaintiff was voluntarily hospitalized for exacerbated major depressive disorder for approximately five days. [AR 519] Upon admission, she reported that she had experienced insomnia for several days preceding the hospitalization, had decreased appetite and poor energy, and was unable to work or take care of daily activities. [AR 520] Plaintiff was unable to identify a triggering event for the depressive episode, though providers noted Plaintiff's “vague paranoia at work, . . . ongoing issues with trust, low energy, ” and low self-esteem. [AR 536-37] During Plaintiff's hospital stay, she was actively involved in group therapy [AR 532] and providers reported that she “recompensated quickly” with the support and structure of inpatient treatment, that she was forward thinking, and looking forward to returning to work [AR 511-12]. Plaintiff developed a Mental Health Safety Plan upon her release, including identifying warning signs of a mental health crisis, internal coping strategies, and people and professionals to turn to for help and support. [AR 514-15]

         Following the hospitalization, Plaintiff continued treatment with Bensinger and continued to express paranoia with respect to co-workers and her job. [AR 498-99] She also described her financial distress, including her difficulty keeping up with student loan payments, and the often stressful nature of her relationship with her mother. [AR 498-99, 506] On July 4, 2013, Plaintiff presented to the emergency room with suicidal ideation (“SI”), with a plan to cut her wrists and overdose on her medications. [AR 281] Plaintiff cited purported rumors spreading about her at work, and interpersonal conflicts with coworkers and family members, including her stressful relationship with her mother. [AR 281-82, 474] Plaintiff identified financial difficulties as another major source of stress, including the financial burdens of her mental health treatment. [AR 281, 467, 490] Plaintiff was discharged a few days later, per her request. [AR 445-46] Providers stated that Plaintiff was “in excellent behavioral control, ” was engaged in safety planning, no longer had SI, and she felt that the crisis had passed. [AR 446, 452-54]

         Plaintiff was hospitalized again on July 26, 2013 and was transferred to Centennial Peaks Hospital, a mental health facility. [AR 415, 421-23, 426-27] She was initially admitted involuntarily but ultimately spent several days at the facility on a voluntary basis. [AR 415, 419, 424] Following this hospitalization, Plaintiff reviewed her Mental Health Safety Plan with providers [AR 411], and was seen by Bensinger for continued therapy [AR 407]. Bensinger reported that Plaintiff's mood was much improved, that she had better control over her emotions, her thoughts were more logical, and that she was actively engaged in coping skills. [AR 407] Bensinger also noted Plaintiff's positive involvement in her own treatment and her ability to seek crisis support. [AR 402-3] Plaintiff participated in group therapy where she consistently was an active participant, contributing to discussions and providing support to other group members. [See, e.g., AR 368, 376, 393, 400, 404] Plaintiff returned to work after three weeks of family medical leave time. [AR 402]

         By October 2013, providers recommended that the suicide risk flag be removed from Plaintiff's veteran medical file, because she was no longer in crisis, the acute risk for suicide had been resolved, she was engaged in both individual and group therapy, and had resigned from her job, which had been a primary stressor. [AR 380] Plaintiff's active involvement in her treatment and her strong alliance with her mental health provider were also noted, and the suicide risk flag was removed. [Id.] During psychotherapy appointments in November and December 2013, Bensinger reported that Plaintiff's mood was “great” and her affect was “very bright, ” and noted Plaintiff's happiness as she discussed her consistent gym workouts, renting an art studio, and her decision to leave her job and move ...

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