United States District Court, D. Colorado
DANICA M. NESS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
Michael E. Hegarty United States Magistrate Judge.
Danica M. Ness appeals from the Social Security
Administration (“SSA”) Commissioner's final
decision denying her application for disability insurance
benefits (“DIB”), filed pursuant to Title II of
the Social Security Act, 42 U.S.C. §§ 401-33.
Jurisdiction is proper under 42 U.S.C. § 405(g). I hold
the ALJ did not err in assigning little weight to the state
consultant's opinion that Ms. Ness must have minimal to
no interaction with the general public. Accordingly, I affirm
the ALJ's decision that Ms. Ness was not disabled from
December 24, 2013 through the date of the decision.
Ms. Ness' Conditions
Ness was born on December 31, 1970; she was forty-three years
old when she filed her application for DIB. [AR 132]. Ms.
Ness claims she became disabled on December 24, 2013.
October 2011, Ms. Ness took a cognitive skills profile test
and scored significantly lower than the standard percentile
in thirteen different categories, such as long-term memory,
math fluency, and visual processing. [AR 241].
March 2014, Ms. Ness received a psychological evaluation by
Psychologist David Benson. [AR 235]. The evaluation included
a Wechsler Adult Intelligence Scale - Fourth Edition, in
which Ms. Ness posted a full scale IQ of 65; she was in the
borderline range for two categories (verbal comprehension and
perceptual reasoning) and the mental retardation range for
two categories (working memory and processing speed).
[Id.] Following the test, Dr. Benson reported that
Ms. Ness has “a poor vocabulary and low fund of general
information” as well as “particularly low visual
mental mathematic skills.” [AR 238]. Dr. Benson also
noted that Ms. Ness will “struggle in work above the
semi-skilled to unskilled level” and is “more
suited for work that is hands on or performance
oriented.” [Id.] Ms. Ness' psychological
evaluation also included a Wide Range Achievement Test, which
revealed an eighth grade competency in reading, sixth grade
proficiency in spelling, and second grade ability in
arithmetic. [Id.] Based on these results, Dr. Benson
reported that Ms. Ness possesses an “actual ability to
read and comprehend, ” but her math skills are
“significantly below the expected level.”
overall summary, Dr. Benson reported that despite certain
intellectual limitations, Ms. Ness could draw on her existing
knowledge and experience or train in a specialized area that
does not require complex skills. [AR 240].
MaryAnn Wharry, the state agency psychological consultant,
completed a disability determination on Ms. Ness in August
2014. [AR 68]. In making her findings, Dr. Wharry only
reviewed the record; she did not visit with Ms. Ness. Opening
Br. 3, ECF No. 16. Dr. Wharry concluded that Ms. Ness has
some intellectual impairment but is able to understand simple
instructions and care for her personal needs. [AR 78].
Despite mentioning that Ms. Ness may not be able to perform
her past work, Dr. Wharry opined that Ms. Ness' condition
is “not considered totally disabling at this
time.” [Id.] However, Dr. Wharry stated that
Ms. Ness “must have minimal to no interaction with the
general public.” [AR 75].
Ness began seeing Dr. David Minkoff at Lifeworks Wellness
Center in November 2014. [AR 252]. At Dr. Minkoff's
request, Sanesco International performed a
hypothalamic-pituitary-adrenal axis assessment on Ms. Ness
and recommended that she be prescribed medicine for
inhibitory support, gamma-amino butyric acid support, adrenal
support, and hot flashes/anxiety. [AR 254]. Following these
tests, Ms. Ness reported to Dr. Minkoff via e-mail that she
was seeing improvements, such as not becoming anxious around
a large amount of people. [AR 315]. However, in February
2015, Ms. Ness reported continued problems, including panic
attacks, hot flashes, rapid breathing, and restlessness. [AR
308]. Dr. Minkoff had Ms. Ness take a blood hormone test and
opted to continue the prescribed treatment without any
changes. [AR 306].
March 2015, Ms. Ness reported to Dr. Minkoff that she
experienced another panic attack. [AR 304]. However, prior to
this incident, she had not had a panic attack “for a
long time” and was becoming more comfortable around
other people. [AR 305].
2015, Ms. Ness' mother informed Dr. Minkoff that Ms. Ness
was feeling much better and had visited the mall, Starbucks,
and a grocery store on her own. [AR 295]. In response, Dr.
Minkoff suggested that Ms. Ness continue taking supplements,
exercising, and following a paleo diet. [AR 294].
other e-mails to Dr. Minkoff in July 2015, Ms. Ness reported
that she was experiencing mood swings, hot flashes,
restlessness, anxiety, lack of energy, an enlarged thyroid,
and a bloated stomach. [AR 283-85]. Regarding the enlarged
thyroid, Ms. Ness visited Mallory Sessions, PA, who advised
Ms. Ness to get an ultrasound and a thyroid stimulating
hormone (“TSH”) test. [AR 348]. The ultrasound
revealed that Ms. Ness' thyroid nodule was decreasing in
size and ultimately benign, and the TSH test result was
within the normal range. [AR 333-35]. During this time, Ms.
Ness updated Dr. Minkoff that she had pleasant experiences
visiting a museum, grocery shopping, taking an Uber, and
visiting Starbucks, all of which she did by herself. [AR
August 2015, Christine Seville, MA, OTR, noted that Ms.
Ness' results from the Woodcock Johnson Test of Cognitive
Disabilities showed “moderate deficiencies in most
areas.” [AR 246]. Among other issues, Ms. Seville
reported that Ms. Ness has mild limitations in understanding,
remembering, and carrying out simple instructions; mild
limitations in interacting appropriately with the public; and
moderate limitations in responding appropriately to usual
work situations and changes in a routine work setting. [AR
246-47]. Further, following a stress questionnaire, Ms.
Seville concluded that Ms. Ness would be unable to perform
the following work-related mental activities on a sustained
basis: understanding, remembering, and carrying out simple
instructions; making simple work-related decisions;
responding appropriately to supervision, co-workers, and
usual work situations; and dealing with changes in work
setting. [AR 250].
Cason, Pys.D., examined Ms. Ness in October 2015 and gave her
an adaptive behavior composite score of thirty-six, a
percentile rank of less than one. [AR 355]. In each of the
individual categories-communication, daily living skills, and
socialization-Ms. Ness also scored below the first
percentile. [Id.] Based on the examination, Dr.
Cason concluded that Ms. Ness has “broad deficits as
compared to same-age peers, ” requiring long-term
support from caregivers. [AR 258].
her appointment with Dr. Cason, Dr. Anne Wein gave Ms. Ness a
vocational rehabilitation evaluation. [AR 213]. Dr. Wein
opined that Ms. Ness' borderline intellectual functioning
and significant deficits in interpersonal skills have reduced
her capacity for competitive employment in an eight-hour work
day. [Id.] Dr. Wein ultimately concluded that Ms.
Ness cannot maintain competitive employment. [Id.]