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Maestas v. Berryhill

United States District Court, D. Colorado

November 12, 2019

NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.


          R. Brooke Jackson United States District Judge

         This matter is before the Court on review of the Social Security Administration (“SSA”) Commissioner's decision denying claimant Alisha Marie Maestas' (formerly known as Alisha Marie Gonzales Menjivar) application for supplemental security income (“SSI”). Jurisdiction is proper under 42 U.S.C. § 405(g). For the reasons explained below, the Court reverses the Commissioner's decision and remands the case for further consideration.


         A person is disabled within the meaning of the Social Security Act only if her physical and/or mental impairments preclude her from performing both her previous work and any other “substantial gainful work which exists in the national economy.” 42 U.S.C. §423(d)(2). To be disabling, a claimant's conditions must be so limiting as to preclude any substantial gainful work for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d 335, 338 (10th Cir. 1995).

         This appeal is based upon the administrative record and the parties' briefs. In reviewing a final SSA decision, the District Court examines the record and determines whether it contains substantial evidence to support the decision and whether SSA applied correct legal standards. Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996). The District Court's determination of whether the ruling by the Administrative Law Judge (“ALJ”) is supported by substantial evidence “must be based upon the record taken as a whole.” Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). A decision is not based on substantial evidence if it is “overwhelmed by other evidence in the record.” Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988). Evidence is not substantial if it “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Reversal may be appropriate if the Commissioner applies an incorrect legal standard or fails to demonstrate that the correct legal standards have been followed. Winfrey, 92 F.3d at 1019.


         A. Factual Background

         Ms. Maestas was born on September 9th, 1986 and was 29 years old when she first applied for disability benefits. She has had a severe anxiety disorder since childhood and left school before finishing ninth grade. R. 44-45; 203. Though Ms. Maestas received some income delivering newspapers and cleaning houses, she has never been able to live independently, and has never sustained employment at levels SSA would consider “substantial gainful activity.” R. 191-193. Ms. Maestas' medical history is extensive, and I do not attempt to document it all here. I provide only a brief summary of relevant events and diagnoses for the purposes of this opinion.

         In November of 2012, Ms. Maestas began to experience severe dizziness. A CT scan, MRI, and echocardiogram showed no abnormalities. R. 434-39, 607. In 2013, she was diagnosed with sinus tachycardia. R. 610. In January of 2014, following an emergency room visit, she saw cardiologist Dr. Barbara O'Brien Beck, complaining of shortness of breath, discomfort in her chest, and irregular pulse. R. 574-75. Dr. Beck concluded she had “inappropriate sinus tachycardia, ” bigeminy (abnormal heart rhythm), and premature ventricular contractions (“PVCs”). R. 562-64; 590; 557. She reported to the cardiologist increased anxiety during this time. R. 551-53. She was prescribed atenolol and discussed use of a continuous positive airway pressure machine (“CPAP”) for sleep apnea. Id. In September of 2014 she returned to the cardiologist and reported improvement in her heart palpitations except at nighttime. The cardiologist suggested they would improve once Ms. Maestas started using the CPAP. R. 545-46. Ms. Maestas returned in June 2015, reporting continued irregular palpitations but improvement with use of the CPAP. R. 532-34.

         In January of 2014, Ms. Maestas sought mental health treatment at Mental Health Center of Denver (“MHCD”) for frequent panic attacks, anger issues, mood swings, changes in appetite, sleep difficulties, lethargy, self-harming behaviors, and passive suicidal ideation. R. 392-93. She was treated by Mr. Jason Turrett, MA., a clinical psychology student who was supervised by Kimberly Pfaff, Psy.D and David Hargrave, Psy.D. R. 279. Ms. Maestas was initially diagnosed with panic disorder with agoraphobia, an unspecified mood disorder, and post traumatic stress disorder. R. 309-19. She was prescribed Lorazepam, psychometric testing, and continued therapy sessions. R. 378-83.

         After several missed appointments, she underwent a series of psychological tests. Her IQ testing showed that she was borderline in perceptual reasoning and working memory, but when these scores were demographically adjusted, they were considered average or low average. R. 281-83. Other tests concluded that she had moderate impairment in sustained attention and impulsivity, inability to adjust to changes in tasks demands, and demonstrated signs of depression. R. 289. Her evaluators summarized their findings: “Alisha's anxiety, immaturity, and relatively low general cognitive functioning cause impairment in her judgment. At times her anxiety overtakes her, skewing her perception of reality. Additionally, she tries to account for everything to which she is exposed, which causes her to obsess and ruminate.” R. 290. The summary continued to say that “Alisha appears to lack adequate psychological resources to cope with the demands that are imposed on her, ” and that “Alisha's depressed presentation and anxiety could be impacting her ability to sustain attention.” R. 289. She was then diagnosed with post-traumatic stress disorder, panic disorder with agoraphobia, and a major depressive disorder. R. 291-292. She resumed treatment on a bi-monthly basis, with difficulty attending appointments due to her agoraphobia and anxiety. Her therapist noted that her anxiety prevented her “from addressing her medical needs appropriately.” R. 328-29.

         In June of 2014, she visited a neurologist, Dr. Aaron Haug, complaining of sudden balance disturbances, “spaceiness, ” and vision disturbances including light sensitivity and vertigo. R. 431. She was diagnosed with “balance difficulty, ” intractable migraines, and was suspected to have vestibular migraines and benign positional vertigo. R. 431-32. She was prescribed Topamax, vestibular training, and physical therapy to assist her with use of a cane. Id. When she returned in September 2014, she told the neurologist she had not started the Topamax because she was concerned about side effects. She reported an increase in headache frequency and the neurologist noted that she was mildly photophobic and experienced subjective dizziness. She was prescribed magnesium and riboflavins as “natural” alternatives to prescriptions, more physical therapy, and vestibular training. R. 428-429.

         In March 2015, she returned to the neurologist with worsened symptoms, including more frequent and severe headaches, movement sensations, and vertigo. She had begun taking Topamax shortly before the visit but had not noticed any changes. The neurologist noted that she stood solely with a cane, appeared unsteady, and could walk across a room without the cane with difficulty. She was diagnosed again with intractable migraines and balance difficulty, and prescribed Paxil. R. 425-26.

         In April of 2015, Ms. Maestas saw Dr. Carol Foster for a second opinion. She was diagnosed with “rocking vertigo, a migraine variant” and obesity. R. 772. Dr. Foster noted that rocking vertigo can be caused by vestibular disorders. Id. Ms. Maestas was prescribed an increased Paxil dose and continuing use of a CPAP for sleep apnea. R. 773.

         In May 2015 Ms. Maestas saw her primary care provider, Dr. Stephen Shepherd, and reported constant bodily pain, pain upon touch, difficulty dressing herself due to pain, stiffness, muscle pains, headaches, and light sensitivity. R. 470. She stated that she used the CPAP but woke up feeling as if she had not slept. Id. On exam she had a “slightly antalgic gait, ” rocked with standing, and had multiple tender spots on her thoracic and lumbar spine. R. 472. She was diagnosed with obesity, chronic headaches, and vestibular migraines with rocking vertigo. R. 468-73. She was also referred to a rheumatologist. R. 476.

         In June of 2015 she returned to her original neurologist, Dr. Haug, and reported she had taken her lower-prescribed Paxil dose for two months. R. 423. She reported no improvement in vertigo, but less severe headaches. Id. She stood slowly with a cane, appeared unsteady, and had difficulty tandem walking but could cross the room without a cane. R. 423-424. She was told to increase her Paxil and restart Topamax. Id.

         In July of 2015, she saw Dr. Duane Pearson, a rheumatologist who diagnosed her with fibromyalgia. R. 787-90. In August of 2015 she returned to Dr. Shepherd reporting shakiness, low food intake, and continuation of Paxil. R. 485. She was referred to the Mental Health Center of Denver as well as to a bariatric and metabolic physician for treatment of her obesity. R. 503.

         By December of 2015, after increasing her Paxil dose, Ms. Maestas developed concerns from things she had heard about the medication and discontinued it. R. 505. Her migraines had worsened in intensity and frequency, she continued to experience rocking vertigo and dizziness, and was told she had diabetes mellitus. Id. On examination by Dr. Haug, Ms. Maestas had a slight positional tremor in her hands, a steady gait without a cane, and was able to tandem walk only 5-6 steps with effort. R. 420-21. She was encouraged to restart Paxil and Topamax. Id. Dr. Haug would not complete disability paperwork. R. 421.

         Dr. Shepherd did complete disability paperwork in January of 2016. R. 513-15. At this visit she had gained four pounds and reported inability to get out of bed due to depression and migraines. Id.

         In March of 2016, Ms. Maestas underwent a consultative examination at Colorado Disability Determinate Services and was examined by James R. Baroffio, Psy.D. R. 619. The examination found that she had poor physical status, walked with effort, and needed a cane. R. 620. She also reported difficulty with household tasks due to her vestibular problems, as well as self-harm. R. 622-23. She presented “as depressive and anxious.” R. 626. She was found to have a low to average memory, limited intellect, depressive disorder, generalized anxiety disorder, and somatic symptoms disorder. R. 620-628.

         In July of 2016, Ms. Maestas saw an ear specialist, Dr. Robert Muckle, and described the November of 2012 onset of her headaches, imbalance, and intermittent oscillopsia. R. 630-32. The specialist found no hearing loss, noted she had normal gate, and ordered additional testing, concluding she had an unspecified disorder of vestibular function. Id. Based on additional tests Ms. Maestas was diagnosed with Meniere's disease in the right ear and vertigo of central origin. R. 636-37. She was prescribed dyazide and recommended a low sodium diet. She reported improvement in her symptoms after two months on this medication and was referred for physical therapy. R. 641-42; 671.

         Ms. Maestas' physical therapist found she had developed a maladaptive sensory referencing pattern over the last five years. R. 707. She demonstrated visual dependence with visual motion hypersensitivity and had a strong sense of motion at rest, which increased her anxiety. R. 706-07. Upon returning for continued physical therapy sessions, Ms. Maestas was unable to tolerate repositioning maneuvers and had strong sensitivity to positional change. Her physical therapist recommended ruling out benign positional vertigo. R. 703-04.

         In February of 2017, Ms. Maestas resumed therapy at Mental Health Center of Denver. Her therapist noted that she rocked in her chair, moved her hands to cope with anxiety, had “fair” hygiene, and did not want to take medications. R. 698-99. Shortly after, she saw a medication prescriber who noted that she was prescribed lorazepam and sertraline for anxiety and agoraphobia but never took them out of fear. R. 687-90. The prescriber was concerned that her untreated panic disorder and anxiety would prevent her from committing to treatment. Id. To “proceed very cautiously with medications” until Ms. Maestas was ready to comply, he prescribed only Xanax, psychotherapy, and assistance with transportation. R. 689. In August of 2017, Ms. Maestas's blood tests showed “protein C and S deficiency.” R. 712-19.

         In December of 2017, Ms. Maestas started receiving home health care services. R. 35- 40. Twice weekly, Ms. Maestas received assistance with bedmaking, meal preparation, dishwashing, cleaning, and other daily activities.

         B. Procedural Background

         Ms. Maestas filed for Title XVI Social Security Income (“SSI”) on November 23, 2015. R. 184-190. After the SSA denied her initial application on September 28, 2018, she requested a hearing which was held before ALJ Scott A. Bryant on October 12, 2017. R. 121, 41. An impartial vocational expert testified at the hearing, and Ms. Maestas was represented by counsel. R. 41-68 (full hearing transcript). The ALJ issued an unfavorable decision on February 9, 2018. R. 12-29. Ms. Maestas then asked the Appeals Council to review the decision. Her request was denied on September 28, 2018, making the ALJ decision final. R. 1-6.

         Ms. Maestas filed a timely complaint and petition for review in this Court on November 23, 2018. ECF No. 1. On March 4, 2019, she submitted an opening brief arguing that the ALJ failed to properly evaluate her limitations, gave improper weight to medical and third-party sources, and incorrectly assessed the consistency of her allegations. ECF No. 15. The Commissioner responded to Ms. Maestas' brief, ECF No. 16, and Ms. Maestas filed a reply, ECF No. 17. This appeal is ripe for review.

         C. The ALJ's Decision

         After evaluating the evidence of Ms. Maestas' alleged disability according the SSA's standard five-step process, the ALJ issued an unfavorable decision. R 12-29. At step one, the ALJ found that Ms. Maestas had not engaged in substantial gainful activity. R. 18. At step two, the ALJ found that Ms. Maestas had the following severe impairments: recurrent arrhythmias; migraines; obesity; affective anxiety; and somatoform disorders. Id. The ALJ found the following non-severe impairments: chronic pain syndrome of unsure cause, Meniere's disease, obstructive sleep apnea. R. 18-19. At step three, the ALJ determined that Ms. Maestas' impairments did not meet or medically equal the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).

         At step four, the ALJ found that Ms. Maestas had a Residual Functional Capacity (“RFC”) to perform light work as defined by 20 CFR 416.967(b), specifically she can lift and carry up to twenty pounds occasionally and ten pounds frequently, can stand or walk for six hours total, and can sit for six hours total in an eight-hour workday with normal breaks. R. 21. She can never climb ladders, ropes, or scaffolds, can occasionally balance, stoop, kneel, crouch, and crawl. She would require the use of a cane for distances greater than fifty feet. Id. Ms. Maestas can have no exposure to hazardous machinery or unprotected heights. She would be off-task an average of 5% of the workday and be absent from work one day per month to manage her medical conditions. Id. She is limited to simple, routine tasks. She can have occasional contact with supervisors, coworkers, and the public. Id.

         In coming to this conclusion, the ALJ gave great weight to the opinion of psychological consultative examiner Dr. James R. Baroffio, who concluded that Ms. Maestas would have mild limitations in learning new tasks and interacting with others, and moderate limitations for complex tasks, and was not capable of managing funds. R. 25. The ALJ also assigned great weight to the opinion of Stacy Koutrakos, Psy.D., the state agency psychological consultant, who found that though Ms. Maestas had severe impairments of affective anxiety and somatoform disorders, she only had mild restriction in daily living activities and moderate difficulties in maintaining social functioning, concentration, persistence, or pace. Id.

         The ALJ assigned little weight to the opinion of Dr. Stephen Shepherd, Ms. Maestas' treating provider who found that Ms. Maestas had limited ability to function in several mental abilities needed for unskilled work, with the most limitation in completing a workday without interruption from psychologically-based symptoms and dealings with normal work stress. Id. The ALJ found Dr. Shepard's opinions to be inconsistent with Ms. Maestas' mental status examination findings of increasing eye contact, a congruent affect, demographically adjusted IQ score of 95, and her lack of participation in mental health treatment between June of 2015 and February of 2017. R. 26. Dr. Shepard also found that Ms. Maestas can sit for two hours total, stand or walk for less than two hours, must shift positions at will, can lift twenty pounds rarely and ten pounds occasionally, can rarely to occasionally perform postural activities, and would miss more than four days of work per month to manage her medical ...

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