United States District Court, D. Colorado
Brooke Jackson United States District Judge
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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
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.
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;
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.
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.
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.
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.
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
The ALJ's Decision
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
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.
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.
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