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Jolliff v. Colvin

United States District Court, D. Colorado

May 8, 2018



          Kathleen M. Tafoya, United States Magistrate Judge

         This matter comes before the court on review of the Commissioner's denial of Plaintiff Angela Mae Jolliff's application for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act (“SSA”). (See generally Doc. No. 11, Social Security Administrative Record [“AR”].)

         Plaintiff filed her opening brief on September 18, 2017. (Doc. No. 15.) Defendant filed her response on October 16, 2017 (Doc. No. 16), and a reply was filed on October 30, 2017. (Doc. No. 17.) Jurisdiction is proper under 42 U.S.C. § 405(g).


         Plaintiff suffers from multiple mental impairments. The first of which is post-traumatic stress disorder (“PTSD”). To provide context, Plaintiff's father abandoned her family when she was two years old. (AR 433.) Plaintiff's mother was physically and mentally abusive. (AR 344.) In addition, boyfriends of Plaintiff's mother raped her. (AR 451.) Such horrific experiences manifested into PTSD by at least February 25, 2014; but given the nature of the condition, it is near impossible to delineate the precise onset date. (AR 302.) Plaintiff suffers from anxiety and trauma-related nightmares. (AR 351.) She sometimes cannot sleep without medication. She has an aversion to men. (AR 214, 324, 351.)

         Plaintiff also suffers from bipolar disorder. In August 2013, she stayed awake for five straight days before having a psychotic episode and being hospitalized. (AR 350.) She was also having suicidal thoughts at that time. (AR 342.) On August 26, 2013, Plaintiff reported depression, “obsessive thoughts[, ] and rumination.” (AR 338.) On May 15, 2014, she reported rages that result in “self harming behaviors of cutting[.]” (AR 316.) On May 23, 2014, she reported fears regarding medication, death from panic attacks, and social rejection. (AR 314.) Three days later, Plaintiff presented “with high levels of distress causing marked interference in interpersonal relationships and daily functioning.” (AR 312.) She lacks trust in others. (AR 336.)

         Compounding Plaintiff's mental impairments is schizophrenia. She has a family history of the disease; both her father and her sister also suffer from it. (AR 432.) At the age of 11, Plaintiff had “visions of hell” and considered suicide. (AR.425.) On August 28, 2013, Plaintiff presented to the emergency room kicking, spitting, and unable to give a history of the events that brought her there.[1] (AR 206.) She claimed that someone had put “counter curses” on her. (Id.) Her Global Assessment of Functioning (“GAF”)[2] score at admission was extremely low-18. Her symptoms were so severe that she was isolated and placed in restraints. (AR 259.) Throughout 2014-2015, Plaintiff continued experiencing auditory hallucinations. (AR 335, 349.) She also reported that the medication (Zyprexa) caused her to have visual hallucinations in addition to her auditory hallucinations. (AR. 362.) On August 11, 2015, during a panic attack, Plaintiff suffered from auditory hallucinations instructing her to commit suicide.


         The Administrative Law Judge (“ALJ”) applied the five-step sequential evaluation process to determine that Plaintiff was not disabled.[3] (AR 11-22.) She found that that Plaintiff had severe impairments including bipolar disorder, schizophrenia, PTSD, and panic disorder (AR 13), but that her medical conditions did not meet or equal the criteria of the disabling impairments listed at 20 C.F.R. part 404, subpart P, appendix 1 (“Listings”). (AR 14-15.) The ALJ found that Plaintiff had the Residual Function Capacity (“RFC”) to perform simple, repetitive, low-stress work that did not involve contact with the public and only limited contact with co-workers. (AR 15.) The ALJ then found at step five that Plaintiff could perform jobs existing in the national economy-concluding that she was not disabled under the SSA. (AR 22.)


         To be disabling, the claimant's condition must be so functionally limiting as to preclude any substantial gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d 335, 338 (10th Cir. 1995). Review of the Commissioner's disability decision is limited to determining whether the ALJ (1) applied the correct legal standard, and (2) whether the decision is supported by substantial evidence. Hamilton v. Sec'y of Health and Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194, 1196 (10th Cir. 1990). Substantial evidence is evidence a reasonable mind would accept as adequate to support a conclusion. Brown, 912 F.2d at 1196. Substantial evidence means “more than a mere scintilla, ” or such evidence as a “reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401. Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).

         Further, “if the ALJ failed to apply the correct legal test, there is a ground for reversal apart from a lack of substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). The court “meticulously examine[s] 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.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (citations omitted). And as the Tenth Circuit observed in Baca v. Dep't of Health & Human Servs., 5 F.3d 476, 480 (10th Cir. 1993), the ALJ has a basic duty of inquiry to “fully and fairly develop the record as to material issues.” Id. This duty exists even when the claimant is represented by counsel. Id. at 480.


         Plaintiff raises several issues for consideration, but what lies at the core of this appeal is (1) whether the ALJ improperly considered the opinion of Christina Pacheco, MA, LAC, NCC under the relevant SSA regulations, and (2) whether the ALJ improperly assessed Plaintiff's credibility in light of objective evidence and subjective allegations in the record.

         Because the court finds for Plaintiff on issue (1), remand is warranted. Upon remand, however, and if Ms. Pacheco is afforded heightened weight, the ALJ will need to re-assess Plaintiff's credibility, the RFC determination and reconsider whether Plaintiff's disabilities meet or equal Listing 12.03 under SSA regulations.

         A. SSR 06-03p: Ms. Pacheco[4]

         Plaintiff challenges the ALJ's assessment of Ms. Pacheco's opinion-Plaintiff's therapist. Here, Plaintiff contends that although Ms. Pacheco is a non-acceptable medical source, she is still a source that must be weighed in accordance with the factors set out in SSR 06-03p, 71 Fed. Reg. 45, 593, 45, 595. Those factors are substantially the same as those in 20 C.F.R. § 416.927(c) (treating physician).[5]

         Plaintiff contends that the ALJ failed to address the following factors when weighing Ms. Pacheco's opinion for the purpose of determining Plaintiff's mental limitations-including: “(1) How long the source has known and how frequently the source has seen the individual; (2) How consistent the opinion is with other evidence; (3) The degree to which the source presents relevant evidence to support an opinion; (4) How well the source explains the opinion; (5) Whether the source has a specialty or area of expertise related to the ...

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