United States District Court, D. Colorado
GWENDOLYN L. HARTMAN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
ORDER AFFIRMING THE DENIAL OF SOCIAL SECURITY
DISABILITY BENEFITS AND SUPPLEMENTAL SECURITY INCOME
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
This
matter is before the Court on review of the Social Security
Commissioner's decision denying Plaintiff Gwendolyn L.
Hartman's application for disability insurance benefits,
filed pursuant to Title II of the Social Security Act, 42
U.S.C. §§ 401-34, and for supplemental security
income, filed pursuant to Title XVI of the Social Security
Act, 42 U.S.C. §§ 1382-85. Jurisdiction is proper
under 42 U.S.C. § 405(g).
Plaintiff
argues that the administrative law judge (“ALJ”)
improperly accorded the opinion of a non-examining,
non-treating medical consultant, Dr. S. Latchamsetty, only
moderate weight. (Doc. # 14 at iv.) The Commissioner argues
that Plaintiff's argument fails because it relies on an
incorrect finding of the ALJ-that Plaintiff did not have any
past relevant work. (Doc. # 15 at 1.) For the reasons set
forth below, the Court affirms the decision of the
Commissioner to deny Plaintiff's applications for
disability insurance benefits and supplemental security
income.
I.
BACKGROUND
A.
PLAINTIFF'S APPLICATION AND OPINION EVIDENCE
Plaintiff,
born June 28, 1955, was fifty-four years old on March 10,
2010, the date she initially alleged her disability
began.[1] (Doc. # 11-5 at 129.)[2] For fifteen years
prior to the alleged onset of her disability, Plaintiff
worked as a housekeeper at hotels, and in 2010, she held
various temporary positions for approximately one month each.
(Doc. # 11-6 at 183; Doc. # 11-5 at 148.)
On
October 11, 2011, Plaintiff filed an application for
disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. §§ 401-34, and an
application for supplemental security income under Title XVI
of the Act, 42 U.S.C. §§ 1382-85.[3] (Doc. # 11-5 at
127-37.) She alleged that a “[b]ack injury, high blood
pressure, stroke[s], [and] [m]ental breakdown[s]”
precluded her from working. (Doc. # 11-6 at 182.) Plaintiff
stated that her pain was located in her head and her lower
back “each and every day” and was made worse by
“movement and cold weath[er] and walking.”
(Id. at 190-91.) She further described, “I am
sad all the time. I cry all the time. I want to kill myself
all the time. I am just no[t] me.” (Id.)
Dr.
Brett Valette, Ph.D., conducted a psychiatric consultative
examination on Plaintiff on January 4, 2012. (Doc. # 11-7 at
282-84.) Dr. Valette described Plaintiff as “vague with
symptoms, ” not appearing to be in pain, and irritable
with him and his staff. (Id. at 283.) “It
[was] difficult to diagnose [Plaintiff] because of her
vagueness with her symptoms, ” he wrote, but he
nonetheless diagnosed her with “Nonspecific Mood
Disorder, depression.” (Id. at 284.) Dr.
Valette had concerns “about symptom exaggeration”
and about Plaintiff's lack of effort during the
evaluation. (Id.) Of her limitations, Dr. Valette
wrote:
I think she was able to understand and follow my directions.
I think her understanding and memory is probably intact. Her
concentration and persistence is maybe mildly impaired
because of depression and pain. . . . As far as work
limitations, from a psychological perspective, I do not see
any work limitations at this time. Her main complaint is back
pain.
(Id.)
Dr.
Marshall Meier, M.D., conducted a physical consultative exam
on January 7, 2012. (Doc. # 11-7 at 285-91.) Plaintiff
complained of back pain that began in March 2010, when she
lifted a box over her head and felt a crack, and of right hip
pain that began in late 2011. (Id. at 285.) Dr.
Meier observed that Plaintiff “showed excessive
movement during the exam. She was bending over, standing up,
and extremely animated. She did not appear to be in any
distress . . . and appeared to be comfortable.”
(Id. at 286.) He noted that there was not an acute
abnormality in her spine, though he observed “[m]ild
degenerative disc and degenerative facet disease.”
(Id. at 289.) Dr. Meier wrote the following
functional assessment:
I feel the claimant's current condition will not impose
any restrictions on her standing or walking capacity. Sitting
capacity, no restrictions.
Assistive device, no restrictions. Lifting and carrying
capacity, no restrictions occasionally or frequently.
Postural activities: There are postural limitations
recommended at this time. Manipulative activities: I would
have concerns with patient swelling in her PIP joints,
excessive manipulative activities may cause worsening of her
symptoms.
(Id. at 289-90.)
On
February 23, 2012, a single decision maker
(“SDM”) at the regional Social Security
Administration office in Pueblo, Colorado, decided that
Plaintiff was not disabled and therefore denied
Plaintiff's applications for benefits. (Doc. # 11-3 at
65, 79.) The SDM assessed Plaintiff's physical residual
functional capacity based on the record and determined
Plaintiff was capable of “light work.”
(Id. at 60.) He indicated that Plaintiff was capable
of occasionally lifting or carrying twenty pounds, of
frequently lifting or carrying ten pounds, of standing or
walking with normal breaks for a total of six hours in an
eight-hour workday, and of sitting with normal breaks for a
total of six hours in an eight-hour workday. (Id. at
60-61.) The SDM determined that Plaintiff did not have
postural, manipulative, visual, or communicative limitations.
(Id. at 61.) Also as part of the
Administration's review, its psychological consultant,
Dr. MaryAnn Wharry, Psy.D., reviewed Plaintiff's medical
records and concluded that Plaintiff “retain[ed] [the]
mental ability to do work not involving significant
complexity or judgment” and “[could] respond
appropriately to supervision [and] coworkers but must have
minimal to no interaction with the general public.”
(Id. at 63, 77.) On February 23, 2012, the Social
Security Administration informed Plaintiff that she did not
qualify for benefits. (Doc. # 11-4 at 81-84.)
On
March 1, 2012, the Administration's medical consultant,
Dr. S. Latchamsetty, M.D., reviewed the SDM's assessment
of Plaintiff's physical residual functional capacity.
(Doc. # 11-7 at 297-98.) Dr. Latchamsetty checked off that he
agreed with the SDM's conclusions about Plaintiff's
physical limitations and symptoms. (Id. at 297.) Dr.
Latchamsetty concluded that the SDM's assessment of
Plaintiff's physical residual functional capacity was
“not unreasonable.” (Id.)
On
March 7, 2012, another medical consultant, Dr. J.V. Rizzo,
Ph.D., reviewed the Administration's psychiatric
assessment of Plaintiff. (Id. at 299-303.) Dr. Rizzo
checked off that he agreed with the Dr. Valette's, Dr.
Wharry's, and the Administration's assessments of
Plaintiff's mental functional limitations. (Id.
at 300.) Dr. Rizzo concluded that Plaintiff's
“statements regarding a mental disability were
partially credible” because they were consistent
“with [the] diagnosis on file, ” but
“objective [consultative examination] findings [did]
not show severity of mental limitations that [Plaintiff]
reports subjectively.” (Id. at 299.) He
described:
She is oriented and in contact with reality. She has
generally adequate cognitive functioning. . . . Claimant has
a severe mood disorder, but she retains the mental ability to
perform simple and detailed tasks and activities with
ordinary supervision. She can interact appropriately in
brief/superficial contacts, but she can be abrasive in
close/frequent interactions. She can adapt to ordinary
workplace expectations and changes.
(Id.)
Plaintiff
requested a hearing by an ALJ on April 4, 2012. (Doc. # 11-4
at 85.) A hearing before an ALJ was scheduled for January 3,
2013. (Id. at 96.)
On May
11, 2012, another medical consultant, Dr. Rudolf Titanji,
M.D., completed a physical residual functional capacity
assessment based on the evidence in Plaintiff's file.
(Doc. # 11-7 at 304-11.) He determined that Plaintiff was
able to occasionally lift or carry 50 pounds, frequently lift
or carry 25 pounds, stand or walk with normal breaks for a
total of six hours in an eight-hour workday, and sit with
normal breaks for a total of six hours in an eight-hour
workday. (Id. at 305.) As to Plaintiff's
postural limitations, Dr. Titanji determined she was capable
of climbing, balancing, stopping, kneeling, crouching, and
crawling frequently. (Id. at 306.) Dr. Titanji noted
that Plaintiff did not have any manipulative, visual,
communicative, or environmental limitations. (Id. at
307-08.) He concluded that Plaintiff's “statements
[were] partially credible based on the totality of the
evidence, ” noting that Plaintiff's “alleged
physical limitations [were] not fully supported by
findings” in her medical record. (Id. at 309.)
On
December 5, 2012, Plaintiff retained attorney Ms. Rachael A.
Lundy. (Doc. # 11-4 at 108-09.)
On
December 27, 2012, Dr. José Vega, Ph.D., retained by
Plaintiff's counsel, performed a mental status
examination on Plaintiff. (Doc. # 11-8 at 376-84.) In a
letter to the Commissioner's attorney dated December 29,
2012, Dr. Vega recounted Plaintiff's explanation of her
work history (she “indicated that she ha[d] always
worked”), medical issues, mental health treatment, and
history of traumas. (Id. at 377-79.) Dr. Vega
observed that Plaintiff appeared “to function between
the borderline to low average range of intelligence”
and “did not appear to present with any significant
pain behavior in the course of [her] interview.”
(Id. at 380.) He assessed her limitations in
understanding and memory as moderate to marked, in sustained
concentration and persistence as moderate to marked, in
social interaction as marked to extreme, and in adaptation as
moderate to extreme. (Id. at 383-84.) Dr. Vega
concluded:
The results of this evaluation indicate that [Plaintiff]
presents with significant depression and anxiety. . . . It is
seen that she is in need of mental health treatment. She does
not tolerate being around other people; prefers to be by
herself, reporting being angry, irritable, and easily upset.
The results of this evaluation, in part, are consistent with
that of Dr. Valette's findings. However, Dr.
Valette's ...