Sandoval v. Berryhill

          ORDER

          Michael E. Hegarty, United States Magistrate Judge.

         Plaintiff 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.

         BACKGROUND

         I. Procedural History

         Plaintiff 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.

         Plaintiff 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.

         Following 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.

         The 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 for review.

         II. Plaintiff's Alleged Conditions

         Because 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.

         While 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.

         Mental Impairments

         Plaintiff 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, 1497-1499.

         On 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. AR 1316.

         Plaintiff 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 sxs^[1] 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.

         Plaintiff 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.

         Physical Impairments

         The 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.

         Plaintiff 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.

         The 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.

         III. Hearing Testimony

         Plaintiff 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.

         July 8, 2014 Hearing

         At the 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.

         Plaintiff 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.

         Plaintiff 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.

         ALJ 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.

         Plaintiff 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.

         Plaintiff 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. Id.

         Finally, 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 ...