United States District Court, D. Colorado
RAEANN M. SANDOVAL, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
Michael E. Hegarty, United States Magistrate Judge.
Raeann Michelle Sandoval appeals from the Social Security
Administration (“SSA”) Commissioner's final
decision denying her application for disability and
disability insurance benefits (“DIB”), filed
pursuant to Title II of the Social Security Act, 42 U.S.C.
§§ 401-433. Jurisdiction is proper under 42 U.S.C.
§ 405(g). The parties have not requested oral argument,
and the Court finds argument would not materially assist in
its determination of this appeal. After consideration of the
parties' briefs and the administrative record
(“AR”), the Court affirms the Administrative Law
Judge's (“ALJ”) decision.
seeks judicial review of the Commissioner's decision
denying her application for DIB filed on October 30, 2009. AR
65. Her application was denied on June 30, 2010. AR 63- 64.
Plaintiff requested a hearing before an ALJ on August 5,
2010. AR 91. ALJ James Wendland held the hearing on September
9, 2011. AR 114. Plaintiff was represented by counsel at the
hearing, and Plaintiff and a vocational expert
(“VE”) testified. AR 31-62. ALJ Wendland issued a
written ruling on September 21, 2011, finding Plaintiff was
not disabled starting on the alleged onset date of October
30, 2008. AR 15-31. On September 13, 2012, the SSA Appeals
Council (“AC”) denied Plaintiff's
administrative request for review of ALJ Wendland's
determination, making the SSA Commissioner's denial final
for the purpose of judicial review. AR 1-5. See 20
C.F.R. § 404.981. Plaintiff filed a complaint in the
United States District Court for the District of Colorado
seeking review of the Commissioner's final decision. On
March 17, 2014, the Honorable R. Brooke Jackson issued an
order reversing the decision of the Commissioner and
remanding the case for further proceedings
(“Order”). AR 621-638.
raised three issues on appeal, and Judge Jackson addressed
all of them in his Order. AR 630. However, only one issue
constituted reversible error. Judge Jackson held that ALJ
Wendland committed reversible error at Step Four when he did
not consider Plaintiff's non-severe impairments in
forming his Residual Functional Capacity (“RFC”).
AR 631. That is, ALJ Wendland stated in his decision that at
Step Two Plaintiff's conditions (sleep apnea, diabetes,
and hypertension) were found to be non-severe; therefore, at
Step Four ALJ Wendland found the non-severe impairments had
already been addressed and did not consider them in his RFC.
Id. Judge Jackson held this was reversible error
because the Tenth Circuit and 20 C.F.R. § 404.1545(e)
clearly required the ALJ to address all of
Plaintiff's impairments, both severe and non-severe, at
Step Four. AR 632. Judge Jackson held the Court could not
determine whether the error was harmless, because it was
possible the cumulative effects of all of Plaintiff's
impairments could have led to additional restrictions in the
RFC. AR 632. Judge Jackson admitted it was possible the error
had no effect on ALJ Wendland's analysis, but since it
was uncertain, the error could not be considered harmless and
the case must be remanded. Id.
remand, a hearing was held before ALJ Jon L. Lawritson on
July 8, 2014. AR 518-568. ALJ Lawritson issued an unfavorable
decision on August 27, 2014. AR 678-697. Plaintiff requested
and was granted review from the AC, AR 706-707, which
remanded the case to the ALJ with directions to
“consolidate the current claim and the subsequent
application … and create a complete and final exhibit
list, ” “[g]ive further consideration to the
nontreating source opinion … and explain the weight
given to such opinion evidence, ” and issue a new
decision. AR 708-710.
case was again before ALJ Lawritson, who conducted a hearing
on June 14, 2016. AR 569-598. ALJ Lawritson, after addressing
the concerns of the AC, once again issued an unfavorable
decision on November 1, 2016. AR 479-508. On September 5,
2018, the AC declined to review ALJ Lawritson's decision,
making the SSA Commissioner's denial final for the
purpose of judicial review. AR 470-472. See 20
C.F.R. § 404.981. Plaintiff filed this civil action, and
the SSA Commissioner's decision is now before the Court
Plaintiff's Alleged Conditions
this case previously has been before Judge Jackson, a
complete summary of Plaintiff's alleged conditions as of
ALJ Wendland's September 21, 2011 decision exists.
Plaintiff states in her opening brief that she will
“refer the court to [the prior] summary.” Opening
Br., ECF 18 at 8. Additionally, Defendant cites Judge
Jackson's rulings as support for her responses to
Plaintiff's allegations. See Response Br., ECF
19. In relying on Judge Jackson's prior rulings Defendant
impliedly adopts the judge's statement of facts. Thus, as
neither the Plaintiff nor the Defendant object to Judge
Jackson's thorough and cogent factual summary, this Court
will adopt it from his March 17, 2014 Order. AR 622-630.
both parties and this Court incorporate Judge Jackson's
summary of the previous record, there have been additions to
the record that must be summarized to adequately present the
current complete record.
supplemented the record with additional exhibits describing
her treatment at Jefferson Center for Mental Health
(“JCMH”). AR 1480-1531. The additional exhibits
show Plaintiff was enrolled in therapy with Erin Haley MA,
LPC, at JCMH from August 31, 2010, through August 8, 2011. AR
1502. Plaintiff's diagnoses of major depressive disorder,
recurrent, moderate; generalized anxiety disorder; and
posttraumatic stress disorder remain consistent with the
previous record. Plaintiff was ultimately discharged from
treatment due to her frequent cancellation of appointments
and the fact she was not “making progress” and
did not “appear to be involved in therapy.” AR
1505. The Court finds the additional exhibits do little to
support a conclusion different than Judge Jackson's
regarding Ms. Haley's treatment of Plaintiff. Most of the
added exhibits document short interactions between Plaintiff
and staff at JCMH discussing assistance with benefits,
housing, and public transportation services. AR 1482-1494,
October 19, 2011, Plaintiff moved to Adams County and, on
referral from JCMH, visited Community Reach Center
(“CRC”) to continue her mental health treatment.
AR 1532. Plaintiff indicated during her initial diagnostic
interview on January 24, 2012, that she suffered from
anxiety, depression, and panic disorders. AR 1551, 1533. The
initial diagnostic interview indicated Plaintiff suffered
from anxiety, PTSD, and a probable mood disorder.
Id. Over the course of the next seven months
Plaintiff demonstrated steady improvement. Objectively,
Plaintiff was attending therapy with Joan Fitzgerald, LPC,
arriving early, and appearing pleasant and cooperative. AR
1556, 1558. Subjectively, Plaintiff reported she still had
difficulty going places alone, trouble sleeping after she
became unable to pay for her Ambien prescription, and
experienced intrusive thoughts; also, she was guarded,
suffered “hyperarousability, ” and occasionally
felt irritated and angry. Id. However, Plaintiff
also reported her medication “appeared to be working,
” she felt “less depressed and not anxious
overall, ” she was able to “babysit at a house
three minutes from where the Aurora theater” shooting
took place, she sometimes had a “great day, ” and
she had overall “significant ongoing
improvement.” Id. On October 30, 2013,
Plaintiff reported feeling anxious about getting her own
apartment but her coping skills, such as reading her Bible
and going to church, had helped reduce her anxiety. AR 1307.
Plaintiff was terminated from treatment on November 6, 2013
for consistently failing to schedule or attend appointments.
returned to therapy on February 7, 2014. AR 1306. During this
session Plaintiff reported she was in a new relationship that
“seem[ed] to ‘be too good to be true which [was]
bringing up a lot of [her] PTSD and anger towards
men.'” Id. She also admitted that
“while seeing Joan [Fitzgerald] and tak[ing] meds
consistently she was doing very well and report[ed]
‘that since I haven't been here and on my meds the
are sneaking back in.'” Id.
Plaintiff's attendance again became irregular, and she
was discharged from services for failure to attend on
February 10, 2015. AR 1314. The discharge summary indicated
Plaintiff was making “moderate progress” and
reported she was “doing better.” Id.
When she was last seen she reported she had lost her housing
and was searching for a new place to live. Id.
reestablished care at CRC on April 23, 2015. AR 1348.
Plaintiff reported a return of almost all symptoms, saying
she had been “moody, irritable, and, anxious
lately.” Id. On September 30, 2015, Plaintiff
appeared anxious and reported her husband, who was recently
released from prison, was visiting her often. AR 1330.
Plaintiff stated “the marriage was over before he went
to prison, ” and she felt she had the strength to
“follow through” and file the divorce papers,
saying she had friends for “help and support.”
Id. During her October 15, 2015 visit, Plaintiff
reported feeling more anxious than usual due to the fact she
was attacked by a woman who was apparently intoxicated. AR
1329. Plaintiff stated the session was helpful, and she had
friends who were supportive. Id. Plaintiff's
final medical record shows she was seen via
“tele-video” for a medication follow up on
October 23, 2015. AR 1326. She reported she felt “anger
about the incident, ” but she had been using
“learned and appropriate coping skills” and was
“doing good now.” Id. Plaintiff was
again discharged on November 30, 2015 for failing to attend
services. AR 1310.
updated record of Plaintiff's physical impairments shows
Plaintiff had continuing treatment at Metro Community
Provider Network (“MCPN”). AR 1370-1479. These
records date from August 8, 2010 through August 28, 2013. AR
1370-1497, 1598. A significant number of the documents are
duplicates from the original record, but Plaintiff's
submission does contain some new medical reports. The record
indicates Plaintiff first visited MCPN for a diabetes
management check on June 5, 2009. AR 1448. Plaintiff
continued to have regular diabetes management checks
throughout the next few years with few irregularities. AR
1443, 1431, 1426, 1422, 1407, 1393. One such irregularity was
on April 24, 2010, when Plaintiff visited MCPN due to sores
that had developed on her body. AR 1438. This condition was
resolved, and there is no mention of it again in the record.
alleges she has had back pain since 2008. AR 1374. However,
her first medically documented complaint of back pain is on
July 21, 2011, when Plaintiff claimed she had been diagnosed
with sciatica “years ago” and experienced
“acute exacerbation over the past 11/2 years.” AR
1380, 1389. Erin Frazier, PA inspected Plaintiff's back
and found “no deformity, mass swelling, or
inflammation, and minimal tenderness was found in the left
paraspinal muscles, lower back, and sciatic notch.” AR
1390. Furthermore, Ms. Frazier noted Plaintiff had full range
of motion and normal strength. Id. During
Plaintiff's final documented visit specifically for back
pain, she claimed her pain was a ten on a scale of one to
ten, with ten being the worst pain possible. AR 1374.
Plaintiff claimed Flexeril “made her back better,
” and sitting, walking, or standing for long periods
“made her back worse.” Id. On August 5,
2013, Plaintiff visited MCPN with complaints of right neck
and shoulder pain. AR 1598. During her follow-up visit on
August 28, 2013, Plaintiff claimed she was still experiencing
right neck and shoulder pain but Flexeril “really
helped.” AR 1592.
most recent medical reports in the record indicate Plaintiff
visited Salud Family Health Centers to establish care on July
17, 2015. AR 1319. Plaintiff reported her pain was a five to
six on the pain scale, which the Court assumes to be a scale
of one to ten. Id. However, the report does not
indicate where Plaintiff was experiencing the pain. AR 1319.
Additionally, just four days later, on July 21, 2015, she
claimed her pain was zero on the pain scale. Id.
has had three separate hearings before an ALJ. The first
hearing was held September 9, 2011. AR 760-791. The Court
will not summarize this hearing as the testimony was already
considered in Judge Jackson's previous Order. However,
there have since been two additional hearings on July 8,
2014, and June 14, 2016. AR 518-568, 569-598. The 2014
hearing was held after Judge Jackson's Order, and the
2016 hearing was held after the case was remanded by the AC.
8, 2014 Hearing
hearing on July 8, 2014, Plaintiff appeared with counsel, and
she and a VE, Martin Rauer, testified. AR 518. Plaintiff
testified her condition had worsened since the 2011 hearing,
specifying that “the mental part” had become
worse. AR 522. She stated that the frequency and intensity of
her mental impairments had become greater. Id.
Plaintiff represented she was approved for Section Eight
housing approximately eight months previously and she now
lived alone which was “different.” Id.
She related that she had recently had a panic attack and she
felt “like [her] heartbeat got scared” and she
“was going to be hurt.” Id. She stated
that her attacks lasted about ten minutes and that they were
often. AR 524. Plaintiff testified she used her coping skills
that she learned from Joan Fitzgerald, but they did not
always seem to work. Id. She claimed she still
locked her bedroom door even when she was alone, because she
did not feel safe due to her traumatic past. Id.
testified her diabetes was under control, and she had lost
weight and was currently three hundred pounds. AR 525. She
also stated she still had not been able to acquire a CPAP
machine due to her financial situation. Id.
Additionally, Plaintiff indicated she was still having back
pain daily. AR 526. She stated she had pain if she sat or
stood for long periods of time. Id. Plaintiff took
Flexeril and Meloxicam, and she tried to exercise.
Id. Furthermore, Plaintiff testified that after
twenty minutes of sitting she needed to stand and stretch,
and the time varied until she was able to sit again. AR 527.
Plaintiff then related that she was not able to stand all
day. Id. Plaintiff alleged her pain had been so
severe that she could only sit twenty minutes and stand ten
minutes at a time since early 2000. AR 528. ALJ Lawritson
asked Plaintiff if her previous employer allowed her to
alternate sitting and standing since she worked until 2008.
AR 529. Plaintiff replied that her employer “didn't
like it” but they allowed her to sit and stand whenever
she needed. Id. After further inquiry by ALJ
Lawritson, Plaintiff stated she did not ask her employer for
permission to alternate sitting and standing but “just
did it” and no one ever confronted her. AR 530.
testified she had difficulty getting along with people and
that she “blows up.” Id. She explained
that if somebody “tells her what to do” she
“gets upset” and would yell or raise her voice.
AR 531. Plaintiff stated her “episodes” were not
confined to the work environment but happened in her personal
life as well. AR 531.
Lawritson then allowed Plaintiff's counsel an opportunity
to examine Plaintiff. AR 532. Plaintiff testified that she
had more difficulty interacting with men than women due to
her history of abuse and sexual assault. Id.
Plaintiff also testified that she had difficulty going to
unfamiliar places. AR 534. Plaintiff clarified a previous
question by ALJ Lawritson, testifying that she was the
manager of an office and the owner was not in the office
often; therefore, she was able to sit and stand as necessary.
Id. ALJ Lawritson interjected and inquired about the
responsibilities of Plaintiff's role as manager.
Plaintiff testified she oversaw two other employees, rated
their performance, and made sure they were doing their work
and meeting their quotas, but did not set their schedules and
did not have the power to hire or fire employees. AR 536.
then testified she lied down often throughout the day. AR
538, 539. Plaintiff originally testified she began lying down
eight hours a day in 2000. AR 540. When ALJ Lawritson
expressed confusion and inquired how it was possible she
began lying down for eight hours a day in 2000, Plaintiff
clarified she had lain on the floor a combined eight hours a
day since 2011. AR 542-544. ALJ Lawritson then asked
Plaintiff if she had been lying on the ground eight hours a
day in 2011, why she had not mentioned it at the 2011
hearing. Id. Plaintiff replied that it was because
she did not remember the question ever “coming
up.” AR 545.
further testified that she had three panic attacks in the
last thirty days and that three to five attacks per month was
typical. AR 546. Plaintiff stated that she had difficulty
sleeping at night due to “racing thoughts, ” and
Ambien or Trazodone helped her sleep. AR 549. She said she
had a “down day … [p]retty often.” AR
549-550. She described a “down day” as
“depressed, racing thoughts, worried.”
Id. Plaintiff testified that this occurred five out
of seven days a week, and during those days she did not leave
her home. AR 550. ALJ Lawritson asked Plaintiff why she did
not testify to this limitation at the hearing in 2011. AR
551. Plaintiff claimed the ALJ “didn't ask me as
much there. And he asked me more about my back…”
Id. Plaintiff's counsel then objected that
Plaintiff testified her conditions had become worse since the
2011 hearing. Id. ALJ Lawritson asked Plaintiff how
many “bad days” she was experiencing in 2011. AR
552. Plaintiff testified “three days” per week.
Plaintiff testified her therapist, Joan Fitzgerald, told
Plaintiff she thought Plaintiff could “get a job,
” but she did not think Plaintiff could “do a
good job” because her “mind is so
scattered.” AR 553. Plaintiff asserted her goal was to
“get better” so she could return to work, and she
had discussed “voc ...