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Smith v. Berryhill

United States District Court, D. Colorado

June 22, 2018

ALLEN D. SMITH, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff, Allen D. Smith, appeals from the Social Security Administration (“SSA”) Commissioner's final decision denying his application for supplemental security income, filed pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383c. Jurisdiction is proper under 42 U.S.C. § 405(g). Oral argument would not materially assist me in the determination of this appeal.

         After consideration of the parties' briefs, as well as the administrative record, I AFFIRM the Commissioner's final order.

         I. Statement of the Case

         Plaintiff seeks judicial review of SSA's decision denying his application for supplemental security income. Compl., ECF No. 1. The application was initially denied on April 7, 2014. [Administrative Record (“AR”) 163] The Administrative Law Judge (“ALJ”) conducted an evidentiary hearing on July 27, 2015 and issued a written ruling on January 12, 2016. [AR 15-82] In that ruling, the ALJ denied Plaintiff's application on the basis that he was not disabled because, considering his age, education, and work experience, he had the residual functional capacity to perform jobs that exist in significant numbers in the national economy. [AR 28] The SSA Appeals Council subsequently denied Plaintiff's administrative request for review of the ALJ's determination, making SSA's denial final for the purpose of judicial review. [AR 1-3] See 20 C.F.R. §416.1481. Plaintiff timely filed his complaint with this court seeking review of SSA's final decision.

         II. Facts

         A. Background

         Plaintiff is a 43 year-old man who has a sixth-grade education with no specialized vocational training. [AR 49, 251, 258] He has held a variety of jobs, including mechanic, dishwasher, lift operator, truck driver, and tour guide. [AR 258]

         Plaintiff previously applied for, and was denied, supplemental security income and disability insurance benefits in 2003, 2004, 2005, and 2007. [AR 237-38, 251-53] In Plaintiff's September 2003 application for supplemental security income, he claimed an alleged onset date of March 2003. [AR 237] In Plaintiff's most recent application-the subject of this opinion-Plaintiff alleged an onset date of February 1992. [Id.]

         B. Relevant Medical History

         In 2007 Plaintiff began to see Heather Rohrer, M.D. at Sutton Place Behavioral Health, Inc. for a psychiatric re-evaluation. [AR 343] Plaintiff had moved and had last been to the clinic in 2005. [Id.] Dr. Rohrer found Plaintiff to be “mildly fidgety but pleasant and cooperative with the exam. He was alert and oriented [and his] thoughts were logical and goal-directed.” [Id.] He was referred to Dr. Rohrer “by his outpatient therapist due to [a] ‘long history of mental health problems (Bipolar/Manic/Anxiety) and substance abuse issues.'” [Id.] He complained of increased anxiety and paranoia and possible delusions. [Id.] In part, Dr. Rohrer assessed Plaintiff as having recurrent major depressive disorder and polysubstance dependence in early remission. [AR 344] She prescribed a trial of Cymbalta to “hopefully target both his depressive symptomology and chronic pain.” [AR 345]

         Over the next ten months, Plaintiff saw Dr. Rohrer seven times. [AR 337-45] Dr. Rohrer consistently noted Plaintiff's paranoia, diagnosed him with schizoaffective disorder, and prescribed Abilify to combat “psychotic symptomology.” [AR 337-41] The paranoia manifested in connection with Plaintiff's concern that his family members laced his food with drugs, that he heard people's thoughts, and felt under investigation or under surveillance. [Id.] In addition, Plaintiff at times exhibited suicidal thoughts, but denied any intent. [AR 338-39, 341] Dr. Rohrer did note that Plaintiff was cooperative and his affect was euthymic or full-ranged in each medical progress note. [AR 337-42]

         In December 2012, Plaintiff saw Kelli Eberhardt, P.A.C. at Mountain Family Health Centers concerning a bloody nose that occurred because he thought “he may have ingested glass while trying to smoke marijuana with a glass pipe.” [AR 429] He was further concerned that “he was given an unwanted drug in [a] marijuana bowl he was smoking with a family friend[.]” [Id.] He reiterated a “long history of being drugged by methamphetamines by members of his family[.]” [Id.]

         Less than a week later, Plaintiff returned, stated he did not feel better, and was “very concerned that he was given marijuana that was laced with something toxic[.]” [AR 426] The report read that a urine drug screen was only positive for cannabinoid. [Id.] Plaintiff again visited Mountain Family Health Centers concerned, among other ailments, with the marijuana he had smoked, although there did not appear to be any actual adverse physical effects diagnostically proven. [AR 413-32]

         Plaintiff was referred to Peter Stubenrauch, M.D. in the pulmonary division at National Jewish Health for further evaluation on his symptoms. [AR 372] Dr. Stubenrauch stated that Plaintiff's findings “on the pulmonary function studies are certainly interesting in that he does have findings most consistent with fixed extrathoracic obstruction coupled with his hoarseness, ” and considered “whether he has a paralyzed vocal cord [as] inhalational injuries do not typically cause this.” [AR 374] Over the course of a few months, Dr. Stubenrauch noticed that Plaintiff's hoarse voice improved, but referred him for further cardiology testing. [AR 366-71] The cardiologist noted that Plaintiff's concerns regarding the inhalation was “fairly abrupt in onset and fairly abrupt in resolution.” [AR 362]

         In January 2014, Plaintiff called the Jefferson Center for Mental Health and wanted “testing to find out what is wrong with him.” [AR 468] He noted that he was told he had attention deficit disorder, but did not “endorse symptoms consistent with psychosis.” [Id.] Plaintiff stated he was applying for social security disability insurance and needed documentation. [Id.] The person taking the call noted that “[a]s we spoke he made it clear that he is wanting as many [diagnoses] as possible on paper so that he can be approved for SSA.” [Id.] Plaintiff stated that “the more I have on paper, the better my chances.” [Id.]

         Plaintiff received therapy from a variety of counselors at Jefferson Center for Mental Health over the next ten months. [AR 464-79, 518-43] In his initial meeting, Plaintiff complained of a struggle with bipolar disorder, post-traumatic stress disorder, and memory issues. [AR 468] The counselor noted that Plaintiff's appearance, mood, speech, affect, thought process, and motor activity were within normal limits, but his remote and recent memories were poor. [AR 472-73] In the subsequent sessions, Plaintiff spoke of an allergy to smoking and how it triggers anger. [AR 465] He recalled that this may relate to his parents. [Id.]

         His aversion to cigarette smoke became a recurrent theme. [AR 526, 528-30, 532, 533, 535] Seeing a smoker would make him “physically ill” and he was concerned that he became sick when a smoker spit into his food. [AR 535] During one session, the therapist noted that Plaintiff encountered cigarette smoke when he entered the building and was visibly upset because he had a strong allergy that impacted much of his daily functioning when he was exposed to secondhand smoke. [AR 532] During these sessions, Plaintiff began to make progress and at one point reported that he was feeling hopeful and stated that he was in a good place. [AR 529] Plaintiff also stated he felt “encouraged about possibly getting financial aide [sic] until his [social security disability insurance] comes in.” [Id.] At a later session, however, Plaintiff smelled cigarette smoke while camping with his girlfriend and “tore up their tent out of anger.” [AR 528] While the therapist noted his mood was depressed, his other mental status characteristics were within normal limits. [Id.]

         Indeed, at times Plaintiff was depressed, his appearance was disheveled, affect was irritable, mood was anxious, thought process was obsessive, and his motor activity was restless. [AR 525, 526, 532] However, the majority of the time, Plaintiff was cooperative with the therapeutic process and his mental status was within normal limits. [AR 466, 522-24, 527, 529-31, 533, 535] He was diagnosed as having bipolar disorder throughout his therapy. [AR 466-75, 519-43] Progress reports throughout his therapy considered his issues with depression, cigarette smoke, the effectiveness of medications, and that his mental status is generally within normal limits. [AR 536-43] Plaintiff appeared to have last visited Jefferson Center for Mental Health in November 2014 when he and his therapist decreased the frequency of his sessions. [AR 522]

         Concurrent to his time in therapy at Jefferson Center for Mental Health, Plaintiff saw Francine Andrews, M.D. regarding “chronic respiratory symptoms with acute worsening around smoke.” [AR 507] Plaintiff eventually received a CT scan and a variety of medicines for the issue. [AR 511-17] Dr. Andrews noted that Plaintiff “has seen improvement but is still having significant problems especially with overheating and exposure to even small amounts of second hand smoke.” [AR 514]

         Additionally, in the early stages of his time in therapy at Jefferson Center for Mental Health, a counselor at a separate company providing vocational assistance to Plaintiff referred him to David Benson, Ph.D. for a psychological evaluation. [AR 435] The background information and individual interview of Plaintiff by Dr. Benson reiterated prior points, including Plaintiff's plan to apply for social security disability insurance; his aversion to secondhand smoke caused by childhood trauma from his parents; ongoing suicidal thoughts without an apparent intent to harm himself; and paranoia, but no hallucinations. [AR 435-37]

         Plaintiff was evaluated on the Wechsler Adult Intelligence Scale-Fourth Edition by Dr. Benson and was found to have a full scale composite score of 70, which placed him in the borderline range of intellectual functioning. [AR 438] In reviewing Plaintiff, Dr. Benson noted that Plaintiff

came to the evaluation wearing a dirty baseball cap and a soiled sweatshirt. He was socially awkward and anxious. During the testing he gave up easily and put forth little effort, and often would not continue even with encouragement. His scores fall around the Borderline range of intellectual functioning, with moderate variation. He has particular deficits in areas which require working memory, such as mental math, along with deficits in tasks that require visual motor speed and coordination. Based on his performance here, he will be challenged in tasks above the unskilled level. A basic dilemma is that the type of tasks for which he would typically qualify are ones which he physically cannot do at this point. He will have a hard time understanding the world around him and will have trouble dealing with complex life problems with which he is now faced.

[AR 439]

         In conducting the Wide Range Achievement Test, Dr. Benson noted that Plaintiff's “scores are within a range that would be expected, ” but the “math is not reported here because it appears that he only answered a few questions without really trying and then quit.” [AR 440] Dr. Benson's diagnostic impression was DSM-V; schizoaffective disorder, bipolar type; characteristics of an attention deficit disorder; borderline intellectual functioning; and cannabis abuse. [AR 441] He noted that it was critical that Plaintiff maintain participation in mental health treatment, that he is extremely volatile, and that there was a possibility of self-harm or decompensation. [AR 442]

         Around the same time as Dr. Benson's evaluation, Plaintiff received a consultative exam from Ronald Jendry, M.D. [AR 443] Under general observations, Dr. Jendry noted that Plaintiff was “a thin fellow who appears in no distress, very friendly[, ] can hear me well and answers articulately.” [AR 444] Dr. Jendry diagnosed Plaintiff with: (1) degenerative disc disease of the spine; (2) a history of brain injury with some cognitive disorder and ADD; and (3) spurring in the anterior hips. [AR 447]

         In April 2014, state agency psychologist Douglas Hanze, Ph.D. evaluated Plaintiff and reviewed his medical record. Dr. Hanze found that Dr. Benson's finding of Plaintiff having an IQ of 70 was not valid because of his other achievement scores and Plaintiff's daily activities, which Dr. Hanze noted as being able to handle self-care, make simple meals, do chores, go out alone, drive, shop, use a checkbook, socialize, and follow spoken instruction. [AR 151-52] However, Dr. Hanze noted severe affective disorder, borderline intellectual functioning, and “ADD/ADHD.” [AR 152] Dr. Hanze found mild restriction of activities of daily living, moderate difficulty in maintaining social functioning, moderate difficulty in maintaining concentration, persistence, or pace, and no episodes of decompensation. [AR 152-53]

         In the mental residual functional capacity assessment, Dr. Hanze found that Plaintiff has concentration problems and difficulty around others, but that he could “follow simple instructions, sustain ordinary routines and make simple, work related decisions, ” and can “work with supervisors and coworkers if contact is not frequent or prolonged.” [AR 156-57]

         C. Hearing Testimony

         Plaintiff's hearing occurred on July 27, 2015. [AR 36] The ALJ first examined medical expert Hugh Savage. [AR 41] Dr. Savage determined that Plaintiff had the severe impairments of sinusitis, low back pain, and asthma. [AR 43-44] Dr. Savage was unclear as to the degree of severity of sinusitis and asthma based on the medical records he reviewed, but found Plaintiff to have minimally severe degenerative disk disorder related to the low back pain. [AR 43-45] Dr. Savage posited that none of Plaintiff's impairments met or equaled any impairments described in the listing of impairments. [AR 45-46]

         Dr. Savage found the following limitations or restrictions resulting from Plaintiff's impairments: Plaintiff could sit, stand, or walk for six hours of an eight hour day with normal breaks; no limits on hand or foot activity; Plaintiff could climb ladders, ropes, and scaffolds occasionally; could climb stairs, ramps, balance, stoop, kneel, crouch, or crawl limited to frequently; no limits to hearing or vision; and that Plaintiff should avoid concentrated exposure to unprotected heights, moving mechanical parts, dust, odors, fumes, and pulmonary irritants. [AR 46-47]

         Plaintiff testified, first concerning his education level. [AR 48] Plaintiff explained his problems with math and memorization and how that has affected his employment. [AR 50-51] There was a discussion concerning his aversion to cigarette smoke. He stated he has had the aversion since he was a young child and thought his reaction to cigarette smoke was a form of PTSD. [AR 49, 52] He explained that in the presence of cigarette smoke he would get ill, panic, or become angry. [AR 51] He stated he accosted people who were smoking or people on whom he smelled cigarette smoke. [Id.] He stated that he regularly had to leave stores if he smells cigarette smoke and that his girlfriend shopped for him. [AR 51-52]

         Plaintiff explained that he thought his mother put drugs in his food growing up as a form of revenge because he “told the wrong people about drug use and the selling of drugs.” [AR 53] He assumed that people would spit in his food in almost any restaurant setting. [AR 53-54]

         Plaintiff's representative questioned Plaintiff on his drug use, which included marijuana, heavy drinking, and the use of cocaine and methamphetamine. [AR 54] The use of marijuana was most prominent for Plaintiff, although he had stopped because he knew he should not be doing it and to remain in a relationship. [AR 55]

         On further discussion regarding PTSD, Plaintiff stated that he would have nightmares four or five days a week, paranoia that he was under surveillance, and that people could hear his thoughts. [AR 56-57] He thought that his difficulty in remaining employed related to his issue with cigarettes, difficulty in interacting with others, and PTSD. [AR 57]

         Plaintiff attributed issues with memory-such that he would need explicit instructions on how to make a frozen pizza-on his attention deficit disorder and bipolar disorder. [AR 58] Plaintiff described the side effects of his medications and the importance of him having a medical kit with inhalers around at all times. [AR 59-60] Plaintiff described his general pain and pain tolerance and estimated that five days a week he would have overly negative days where would just try to rest and clear his head. [AR 61-62] Plaintiff stated that during Dr. Benson's psychometric testing, he became overwhelmed due to his lack of education and, as his representative put it, “basically quit.” [AR 64]

         The ALJ then examined a vocational expert (“VE”), who found that jobs existed within all of the ALJ's hypothetical constraints. [AR 67-73] Plaintiff's representative added additional constraints to the hypotheticals, some of which the VE found would lead to no competitive employment. [AR 73-76]

         Finally, Plaintiff's partner Beverly Lynn Peper was questioned. [AR 76] She confirmed Plaintiff's use of drugs and alcohol, but was convinced he was “clean of anything like extreme alcoholism, cocaine, [or] methamphetamines.” [AR 78] Peper additionally stated the difficulties the couple faced because of Plaintiff's sensitivity to cigarette smoke. [AR 79-80] She explained that

the cigarette smoke and residue is a constant battle daily. Where it goes into -- he truly, truly, truly has a sensitivity to cigarette smoke. I mean he will say someone is smoking, and then perhaps a minute -- a couple seconds or a minute someone will pass us that is smoking. He truly, truly has a strong sensitivity to it.

[AR 81] She continued that if they go to a restaurant and the server had just smoked, they would have to leave and that if the cook had smoked, Plaintiff would perceive that as being poisoned. [Id.]

         III. Legal Standards

         A. SSA's Five-Step Process for Determining Disability

         A claimant is “disabled” under Title XVI of the Social Security Act if he is unable 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 twelve months.” 42 U.S.C. §1382c(a)(3)(A); see also Bowen v. Yuckert, 482 U.S. 137, 140 (1987). SSA has established a five-step sequential evaluation for determining whether a claimant is disabled and thus entitled to benefits. 20 C.F.R. § 416.920.

         At step one, SSA asks whether the claimant is presently engaged in “substantial gainful activity.” 20 C.F.R. § 416.920(b). If he is, benefits are denied and the inquiry stops. Id. At step two, SSA asks whether the claimant has a “severe impairment”-that is, an impairment or combination of impairments that “significantly limits [his] physical or mental ability to do basic work activities.” 20 C.F.R. § 416.920(c). If he does not, benefits are denied and the inquiry stops. If he does, SSA moves on to step three, where it determines whether the claimant's impairments “meet or equal” one of the “listed impairments”-impairments so severe that SSA has determined that a claimant who has them is conclusively disabled without regard to the claimant's age, education, or work experience. 20 C.F.R. § 416.920(d). If not, SSA goes to step four.

         At step four, SSA determines the claimant's residual functional capacity (“RFC”)-that is, what he is still able to do despite his impairments-and asks whether the claimant can do any of his “past relevant work” given that RFC. 20 C.F.R. § 416.920(e). If not, SSA goes to the fifth and final step, where it has the burden of showing that the claimant's RFC allows him to do other work in the national economy in view of his age, education, and work experience. 20 C.F.R. § 416.920(g). In contrast with step five, the claimant has “the burden of establishing a prima facie case of disability at steps one through four.” Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003).

         B. Standard of Review

         My review concerns only whether SSA's factual findings are supported by substantial evidence and whether the correct legal standards were applied. Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015). With regard to the law, reversal may be appropriate when SSA either applies an incorrect legal standard or fails to demonstrate reliance on the correct legal standards. Kellams v. Berryhill, 696 Fed.Appx. 909, 911 (10th Cir. 2017). With regard to the evidence, I must “determine whether the findings of fact . . . are based upon substantial evidence, and inferences reasonably drawn therefrom. If they are so supported, they are conclusive upon the reviewing court and may not be disturbed.” Trujillo v. Richardson, 429 F.2d 1149, 1150 (10th Cir. 1970).

         “Substantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Razo v. Colvin, 663 Fed.Appx. 710, 713 (10th Cir. 2016). The record must demonstrate that the ALJ considered all of the evidence, but an ALJ is not required to discuss every piece of evidence. Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). I examine the ...

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