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Miller v. Berryhill

United States District Court, D. Colorado

March 21, 2018

NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.



         THIS MATTER comes before the Court for consideration of Ms. De Falco Miller's appeal from the denial of her application for Social Security Disability (“SSDI”) benefits. The Court has considered the Administrative Record (# 14), and the parties' briefs as to the merits (#17, 18, 19).


         The Court summarizes (and briefly comments upon) the pertinent facts here and elaborates as necessary in its analysis. Ms. De Falco Miller, then 48 years old, applied for SSDI benefits in July 2013, citing a disability onset date of the same month. Ms. De Falco Miller suffers from a bipolar disorder that affects her ability to concentrate and retain and understand instructions. She also suffers from physical impairments in the form of arthritis and lupus that restrict her ability to sit, stand, reach, and so on. Ms. De Falco Miller has a high school education and although she held a variety of jobs for short periods of time between 1991 and 2008, those jobs do not amount to a meaningful work history and she has not performed any gainful work since 2008.

         An ALJ heard Ms. De Falco Miller's claim in August 2015. The ALJ took testimony from Ms. De Falco Miller and from a vocational expert (“VE”), and reviewed records from several medical providers, discussed below.

         Ms. De Falco Miller testified that she suffers from “bad arthritis” and lupus, which causes her pain in her hands and shoulders. She testified that she had difficulty grasping and holding objects and opined that she could not even lift five pounds or raise her arms to shoulder level. She also testified about suffering from levator ani, a rectal disorder, that caused her to have to frequently change positions from standing to sitting and vice-versa, and required her to lay down after having a bowel movement. Mentally, she reported suffering from bipolar disorder that would cause her mind to race. She stated that the situation caused her to have “a hard time keeping track of what I'm doing and thinking.” She stated that she had trouble processing emotions, and would have to write down instructions she received from supervisors to recall them, and that having to re-read them would cause her to become angry. She explained that her limitations in concentration make driving, shopping, and watching movies difficult.

         Ms. De Falco Miller's treating psychiatrist was Dr. Nizami.[1] He saw Ms. De Falco Miller on numerous occasions over a seven-year period and treated her bipolar disorder. He completed a residual functional capacity (“RFC”) evaluation form, opining that Ms. De Falco Miller had moderate impairments in the ability to understand and remember detailed instructions; moderate limitations in most aspects of sustaining concentration on all but the simplest of tasks; moderate limitations in her ability to relate to co-workers, supervisors, and the public; and mostly moderate limitations in her ability to adapt to changes in job circumstances. Dr. Nimazi also opined that Ms. De Falco Miller would be “mentally off-task” for 20-30% of the work week.

         In his decision, the ALJ announced that he gave “little weight” to Dr. Nimazi's RFC opinions, finding that they were “not supported by the record as a whole.” In support of that conclusion, the ALJ cited to Dr. Nimazi's reports from January 2015 exam in which Ms. De Falco Miller's “flow of thought” was “intact with no looseness of association, circumstantiality, or tangentiality.” In that same report, the ALJ found, Dr. Nimazi noted that Ms. De Falco Miller “indicated that she was able to concentrate adequately and stay on the topic of conversation without any difficulty.” The ALJ did not discuss whether the January 2015 examination was consistent with the entire course of treatment Ms. De Falco Miller was received from Dr. Nimazi.

         The ALJ gave “partial weight” to Dr. Nimazi's opinions regarding Ms. De Falco Miller's limitations in activities of daily living and social functioning.

         The ALJ rejected Dr. Nimzai's opinions that Ms. De Falco Miller would be off-task 20-30% of the time, finding that opinion was not supported by the record. As to that latter point, the ALJ noted that treatment reports from Dr. Nizami's visits with Ms. De Falco Miller in March, May, and September 2014 all reported generally normal results. The ALJ's specific explanation on this point warrants comment: the ALJ demonstrates a repeated tendency to announce a conclusion (“the opinion regarding being off-task is not supported”), quote substantial portions of the provider's medical records, and then move on, apparently assuming that those quotations patently demonstrate a basis for the conclusion. More often than not, however, the quoted portions of the medical records are largely irrelevant to the point for which the ALJ offers them. For example, in support of his contention that Dr. Nimazi's 20-30% off-task opinion is not supported by the record, the ALJ points to the following observations from Dr. Nimazi's May 2014 visit with Ms. De Falco Miller: “the claimant's speech rate was normal. Sensorium were clear and she was oriented to all spheres. Memory skills were intact. Further, insight and judgment were adequate, and suicide risk was found to be low.”[2] Matters relating to Ms. De Falco Miller's speech rate, her sensory processing, her orientation as to time and place, her memory, and her risk of suicide have nothing to do with the limitations that Ms. De Falco claims actually cause her to be off-task: racing thoughts and impairments in concentration and focus. Almost none of the quotations offered by the ALJ to support the decision to disregard Dr. Nimazi's opinions about Ms. De Falco Miller veering off-task address her complaints of racing thoughts or limited concentration. The only pertinent quotation from Dr. Nimazi's records that the ALJ provides that is germane to this issue is the one relating to “flow of thought” from the January 2015 exam (which is not one of the three 2014 dates listed in the ALJ's reasons for rejecting Dr. Nimazi's off-task RFC opinion).

         Ms. De Falco Miller also presented evidence from Dr. Timms, her treating rheumatologist. He diagnosed Ms. De Falco Miller as suffering from lupus. He reported that she experienced a rash on her upper extremities and shoulder pain. He opined that she could not life more than ten pounds, sit or stand for more than two hours each per day (changing positions every 15-20 minutes), could do up to one hour per day of reaching and handling (but no fingering), and could not perform any stooping, squatting, or crawling. The ALJ noted that these restrictions were “so restrictive as to render the claimant disabled, ” but decided to give them “little weight.” The ALJ found that the posture limitations and reaching/grasping/fingering limitations were “not supported by the record.” In support of this proposition, the ALJ again quoted large chunks of statements from Dr. Timms' medical records, but the statements the ALJ chose to quote again have no real bearing on the issues of Ms. De Falco Miller's postural or dexterity limitations. Among other things, the ALJ twice notes in Dr. Timms' notes the absence of “alopecia” (that is, hair loss at the scalp), the absence of rashes, mentions that Ms. De Falco Miller's reflexes were normal and symmetrical, and mentions that her sensory, motor, and cerebellar functions were normal. None of these findings pertain to Dr. Timms' conclusion that Ms. De Falco Miller had significant postural and dexterity limitations.

         The ALJ also considered medical evidence from Adam Summerlin, an examining physician whose RFC opinions limited Ms. De Falco Miller to six hours of standing and walking per day, four hours sitting, lifting of 10 lbs. frequently and 20 lbs. occasionally, and allowed for frequent postural activities like kneeling or crawling. The ALJ found that the “limitation to light work” was supported by the record, but that the postural limitations were not. Once again, this conclusion is supported by a recitation of findings from Dr. Summerlin's exam that have little bearing on the question of whether postural limitations are appropriate - e.g. observations that Ms. De Falco Miller's reflexes were normal and that she did not use an assistive device.

         Finally, the ALJ considered the report of a state agency psychological consultant “who found the mental impairments nonsevere.” Curiously, the ALJ gave that opinion “little weight, ” finding that “the record supports greater restriction.” (The quotations from the record the ALJ uses to support that conclusion are essentially the same findings from the March-September 2014 records from Dr. Nimazi, which point to Ms. De Falco Miller having “normal” exam results. Contrary to the ALJ's finding, these would seem to affirm, rather than undercut, the consultant's opinion. Ultimately, this confusing discrepancy does not factor into the analysis.)

         Turning to the vocational expert at the hearing, the ALJ inquired of the availability of unskilled and non-complex work for a person with Ms. De Falco Miller's age and education, with a restriction to light exertion, occasional reaching above chest height, frequent handling/grasping/fingering, and only occasional dealings with customers and co-workers. The VE opined that jobs such as production assembler, dry cleaning worker, and housekeeper/cleaner would fit those limitations. The ALJ posited a second situation, with the same limitations, plus an additional limitation that the worker would be off-task 20-30% of the time. The VE stated that no jobs meeting those restrictions would exist. The ALJ tendered a third hypothetical, with the same limitations as the first, but changing from light work to sedentary work with no more than two hours each of standing and sitting per day, ...

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