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Beard v. Berryhill

United States District Court, D. Colorado

April 5, 2019

MARY D. BEARD, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          LEWIS T. BABCOCK, JUDGE

         Plaintiff Mary D. Beard appeals from the Social Security Administration (“SSA”) Commissioner's final decision denying her application for disability insurance benefits, filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., and her 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 is a 55 year-old woman with a tenth-grade education. [Administrative Record (“AR”) 192, 197] She seeks judicial review of SSA's decision denying her applications for disability insurance benefits and supplemental security income. Pl.'s Br., ECF No. 16. Plaintiff filed her applications for disability insurance benefits and supplemental security income in August 2010 alleging that her disability began in June 2010. [AR 161-63]

         The applications were initially denied in October 2010. [AR 69-72] After Plaintiff's request for review, the Administrative Law Judge (“ALJ”) conducted an evidentiary hearing and issued a written ruling March 2012. [AR 9-52, 77] In that ruling, the ALJ denied Plaintiff's application on the basis that she was not disabled because, considering her age, education, work experience, and residual functional capacity, Plaintiff could perform jobs that existed in significant numbers in the national economy. [AR 21]

         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 1-4]; 20 C.F.R. §§ 404.981, 416.1481. In March 2016, the Tenth Circuit remanded SSA's decision to deny Plaintiff benefits. [AR 389-97] The Tenth Circuit found that the ALJ improperly rejected the opinion of an examining psychologist. [AR 389-93]

         In November 2016, a different ALJ held another oral hearing. [AR 345-65] Again, Plaintiff's claims were denied. [AR 324-38] The SSA Appeals Council denied Plaintiff's request to review, making the ALJ's decision final. [AR 318-21] Plaintiff timely filed her Complaint with this court seeking review of SSA's final decision. Compl., ECF No. 1.

         II. Relevant Medical History

         Plaintiff's appeal relates to her mental health. ECF No. 16 at viii. The relevant medical history includes reports and examinations from Carlos Rodriguez, PhD, Jeanette Grant, LCSW, CAC, and Robert Pelc, PhD, ABPP.

         A. Dr. Rodriguez

         Dr. Rodriguez first saw Plaintiff in July 2010 when he performed a clinical interview. [AR 257-58] Dr. Rodriguez noted that Plaintiff was not on antidepressants at the time and had not been in mental health counseling. [AR 257] He noted that she had psychosocial stressors and grieved the loss of her husband, who died in 2009. [Id.] He stated that Plaintiff had a “flat affect and depressed demeanor, ” reported a history of depression and anxiety, and appeared to be functioning significantly below average in her intellectual capabilities. [Id.] Dr. Rodriguez diagnosed Plaintiff with major depression and an anxiety disorder and rule-out diagnoses of borderline intellectual functioning, mild mental retardation, and academic developmental disorders. [AR 258] He concluded that Plaintiff was not capable of managing monthly benefits on her own behalf, needed further evaluation regarding intellectual functioning, and referred her to a mental health center for treatment. [Id.]

         In November 2010, Dr. Rodriguez performed a diagnostic interview and a mental evaluation. [AR 307-14] Dr. Rodriguez again noted Plaintiff's flat affect and depressed demeanor and added that she appeared stressed and tremulous. [AR 307-08] He wrote that Plaintiff reported difficulty with attention, concentration and short-term memory, but that she presented an appropriate attitude in the evaluation. [AR 308] Dr. Rodriguez added that he established rapport and spoke freely with Plaintiff and that she did not display any bizarre behaviors during the evaluation. [Id.]

         Dr. Rodriguez performed the “Folstein Mini-Mental Status Examination” and found that Plaintiff was “oriented to person, place, and time, per her appropriate responses to orientation type questions.” [AR 308] She could recall three of three objects immediately and one of the three objects after five minutes, “indicating the presence of deficits in short-term auditory memory.” [Id.] She had “great difficulty in performing serial seven subtractions, indicating the presence of deficits in attention and calculation abilities.” [Id.] She had “difficulty in recalling the names of five western states, indicating the presence of deficits in long-term memory for overlearned environmental information, ” but could name simple objects, such as a watch and a pen. [Id.] She could follow two steps of a three-step command, “indicating the presence of deficits in the ability to process auditory information.” [Id.] Further, her “responses to comprehension type questions indicate the presence of deficits in basic social judgement.” [Id.] Dr. Rodriguez suggested the presence of a neurocognitive impairment and found Plaintiff to have marked or extreme mental limitations in his mental capacity evaluation. [AR 308, 313-14]

         Plaintiff saw Dr. Rodriguez once per year between 2012 and 2016. [AR 683- 87] His diagnoses stayed similar throughout this time. [Id.] In September 2016, Dr. Rodriguez performed another psycho-diagnostic interview. [AR 836] Dr. Rodriguez's observations generally paralleled those of his earlier examinations. He found Plaintiff to be teary-eyed with a flat affect and a depressed demeanor. [AR 837] He found that “her thoughts and her speech content do not reflect the presence of flight of ideas, loose associations, or confusion” and were “goal directed, coherent, and do not display the presence of hallucinations, delusions, or other psychotic manifestations.” [Id.]

         He performed a mental status examination, where he noted that Plaintiff was oriented to person, place, and time. [Id.] She could recall three-of-three objects immediately, but only two-of-three after five minutes. [Id.] Plaintiff was unable to perform serial seven subtractions, could name five western states, and was deficient in basic social judgment and her abstraction ability. [Id.] Dr. Rodriguez noted that Plaintiff's responses ...


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