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Ness v. Berryhill

United States District Court, D. Colorado

July 19, 2018

DANICA M. NESS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.


          Michael E. Hegarty United States Magistrate Judge.

         Plaintiff 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.


         I. Ms. Ness' Conditions

         Ms. 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. [Id.]

         In 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].

         In 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.” [Id.]

         In his 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].

         Dr. 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].

         Ms. 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].

         In 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].

         In May 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].

         In 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 287].

         In 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].

         Nancy 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].

         Following 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.]

         II. ...

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