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Noreja v. Berryhill

United States District Court, D. Colorado

July 23, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         This matter is before the Court on review of the Social Security Commissioner's decision denying Plaintiff Arthur Noreja's application for disability insurance benefits, filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-34, and for supplemental security income, filed pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1382-85. Jurisdiction is proper under 42 U.S.C. § 405(g).

         Plaintiff argues that the administrative law judge (the “ALJ”) failed to comply with an order of remand from the Social Security Administration's Appeals Council and that the ALJ wrongly weighed three sources of opinion evidence. (Doc. # 15 at 3.) Because the ALJ's analysis was supported by substantial evidence and because the ALJ used the correct legal standards, the Court rejects Plaintiff's arguments and affirms the decision of the Commissioner.

         I. BACKGROUND


         Plaintiff, born July 20, 1967, was 44 years old when his disabilities allegedly began on February 1, 2012. See (Doc. # 11-6 at 415.)[1] Plaintiff filed applications an application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-34, and an application for supplemental security income under Title XVI of the Act, 42 U.S.C. §§ 1382-85, on March 27, 2012.[2] (Id. at 415-29.) Plaintiff alleged that the following physical and mental conditions limited his ability to work: “[s]kull fracture; memory loss; right femur fracture; back; neck; left shoulder; right ankle.”[3](Doc. # 11-8 at 477.) On an accompanying pain questionnaire, Plaintiff also complained of headaches “all the time.” (Id. at 485-86.) Plaintiff reported that he worked as an assistant at an animal shelter until February 1, 2012, and had held positions at food service establishments and at a call center in the ten years prior. (Id. at 478.)

         Dr. Kent Lofley, D.O., conducted a consultative physical examination on Plaintiff on June 23, 2012. (Doc. # 11-10 at 642-47.) Plaintiff complained of worsening memory loss and headaches that he treated with medical marijuana. (Id. at 642.) Dr. Lofley observed that Plaintiff was “pleasant, cooperative, and appeared in no acute distress, ” he “did not appear particularly anxious [or] agitated, . . . and responded appropriately with adequate effort throughout, ” and his “speech was clear and coherent.” (Id. at 644.) Dr. Lofley performed a “mini” mental status examination on Plaintiff with the following results:

Score 21/30. One point off for not being able to know the season, 3 points off for not being able to spell the word “world” backwards, 3 points off for not being able to remember 3 objects[, ] and 2 points off for not being able to follow the command “close your eyes.” One point off for not being able to write a sentence.

(Id. at 647.) Among Dr. Lofley's diagnoses of Plaintiff were “[m]ild cognitive impairment with associated memory loss with a minimental [sic] status exam score of 21/30” and “history of traumatic brain injury.” (Id.) Dr. Lofley's functional assessment of Plaintiff found only physical limitations; he stated that there were “no other relevant visual, communicative[, ] or workplace environmental limitations recommended.” (Id.)

         On July 9, 2012, a single decision maker (the “SDM”) at the regional Social Security Administration office in Pueblo, Colorado, concluded that Plaintiff was not disabled and denied Plaintiff's applications. (Doc. # 11-3 at 102-25.) Relevant here, the SDM determined that Plaintiff did not have communicative limitations. (Id. at 122.) Also as part of the Administration's initial review, a psychological consultant, Dr. James Wanstrath, Ph.D., reviewed Plaintiff's file and concluded that Plaintiff's alleged affective disorders were “not severe” and that Plaintiff had only “mild” difficulties with activities of daily living and with maintaining concentration, persistence, and pace. (Id. at 119.) The Social Security Administration informed Plaintiff that he did not qualify for benefits on July 10, 2012. (Doc. # 11-4 at 159-64.)

         Plaintiff retained attorney Mr. Lawrence D. Saunders on August 3, 2012 (id. at 165-67), and on August 9, 2012, Plaintiff requested a hearing before an ALJ (id. at 168). The Administration scheduled a hearing for July 9, 2013. (Id. at 191.)

         One of Plaintiff's treating physicians, Dr. Ben Martinez, M.D., provided two assessments of Plaintiff's limitations in the spring of 2013. First, Dr. Martinez filled out a Med-9 form for the Colorado Department of Human Services in support of Plaintiff's application for state aid on March 25, 2013; on that form, he checked the statement, “I find this individual has been or will be totally and permanently disabled to the extent they are unable to work at any job due to a physical or mental impairment.” (Doc. # 11-10 at 655.) Second, on May 13, 2013, Dr. Martinez filled out a brief questionnaire[4] in which he indicated that Plaintiff suffered from daily headaches of 30 minutes to multiple hours and that Plaintiff was prescribed Vicodin, Flexeril, and medical marijuana to treat them. (Id. at 671.) Dr. Martinez checked off that Plaintiff would not be able to function on a job while headaches occur because Plaintiff would be “unable to concentrate properly” and would have “upset stomach.” (Id.)

         Dr. Richard Madsen, Ph.D., conducted a psychological evaluation on Plaintiff on June 4, 2013, on a referral from Plaintiff's counsel. (Id. at 659-70.) Dr. Madsen observed that Plaintiff “appeared to be reliable, ” “was cooperative[, ] and appeared to give an honest effort on test items.” (Id. at 659.) After detailing Plaintiff's account of his history and impairments, [5] Dr. Madsen reported the following on Plaintiff's “mental status exam”:

The client is oriented to person, place, and time. He was able to recall the year, the month, the day of the month, the day of the week, and the name of the President. Affect is consistent with an anxious mood. Thought processes are nonpsychotic. Short-term memory appears to be poor. Thought content is logical and relevant. . . . His speech was clear and intelligible, but at times, he had trouble finding the words that he wanted to say and tended to stammer. No evidence of present suicidal or homicidal ideation. . . . Level of intellectual functioning is somewhat impaired, probably in the borderline range, possibly lower. His fund of knowledge is impaired. . . . Appears to be reasoning functionally. His judgment indicates he is somewhat impulsive. . . . Persistence and pace were adequate.

(Id. at 661-62.)

         At counsel's request, Dr. Madsen administered the Wechsler Memory Scale, Fourth Edition (“WMS-IV”) assessment and reported that Plaintiff scored “extremely low” across all areas of memory-auditory, visual, visual working, immediate, and delayed memory. (Id. at 662.) Dr. Madsen described that Plaintiff's memory index scores on the WMS-IV were all “significantly impaired in the extremely low range, the first percentile and below, ” indicative of “significant memory impairment.” (Id.) Dr. Madsen assessed Plaintiff with depressive disorder not otherwise specified (“NOS”), cognitive disorder NOS, post-traumatic stress disorder, and personality disorder NOS. (Id. at 663.) He concluded that Plaintiff's “ability to do work-related activities [was] significantly impaired because of cognitive functioning, [and] problems with memory.” (Id.)


         ALJ Debra Boudreau conducted a hearing on Plaintiffs' applications on July 9, 2013. See (Doc. # 11-2 at 73-98.) Plaintiff and an impartial vocational expert, Ms. Bonnie Martindale, testified, and Plaintiff's counsel was present. (Id. at 73.) Plaintiff testified about his daily activities, and when the ALJ asked him about his work experience, Plaintiff stated, “I have to be told . . . one task at a time. . . . But if I'm giving [sic] two, three tasks I have to go back and say, okay, what's next, and they're like well I just told you. So that caused a little problem.” (Id. at 78-87.) Plaintiff's counsel asked about his headaches, and Plaintiff responded that he had headaches “all the time, every day, ” and “more than once a day.” (Id. at 90.) The vocational expert categorized Plaintiff's previous work as requiring “medium” and “heavy” levels of exertion[6] and testified that a hypothetical individual with Plaintiff's profile and certain physical limitations would not be able to perform Plaintiff's previous jobs. (Id. at 92-94.) She testified that the hypothetical individual would be capable of performing work requiring “light” exertion, [7] including work as a dry cleaner, a food service worker, a ticket taker, or a bakery racker. (Id. at 94-96.)

         The ALJ issued her decision that Plaintiff was not disabled and not entitled to disability insurance benefits or supplemental security income on July 23, 2013. (Doc. # 11-3 at 126-47.) The ALJ identified that Plaintiff had “severe impairments” of “cognitive disorder, not otherwise specified; and headaches.” (Id. at 131.) Plaintiff had the residual functional capacity (“RFC”) to perform medium work, subject to some physical limitations (including avoidance of concentrated exposure to pulmonary irritants), but the ALJ determined that Plaintiff was “able to understand, remember, and carry out simple instructions that can be learned and mastered within 30 days.” (Id. at 134.) The ALJ determined that Plaintiff's “statements concerning the intensity, persistence and limiting effects of [his] symptoms [were] not credible to the extent they [were] inconsistent with . . . the medical evidence.” (Id. at 137.) In reviewing opinion evidence, she assigned “great weight” to Dr. Lofley's assessment but “little weight” to the medical opinions of Dr. Madsen and Dr. Martinez. (Id. at 138-39.) Finally, the ALJ relied on the vocational expert's testimony that Plaintiff was capable of working as a food service worker, ticket taker, or bakery racker. (Id. at 141.)


         On March 11, 2015, the Appeals Council vacated the ALJ's decision and remanded the case for further proceedings. (Id. at 148-51.) The Appeals Council disagreed with the ALJ's rationale for assigning Dr. Madsen's opinion little weight, explaining that “it [did] not appear Dr. Madsen had to rely on subjective complaints to form his opinion. The objective exam results show[ed] poor short term memory, trouble finding words, . . . and extremely low memory scores on apparently valid WMS-IV testing.” (Id. at 149.) The Appeals Council held that “[i]f Dr. Madsen's opinion merits less weight based on the manner by which it was obtained, then these results should be confirmed or contradicted by an impartial consultative examination.” (Id.) The Appeals Council directed the ALJ to, on remand:

Obtain additional evidence concerning the claimant's mental impairments in order the complete the administrative record in accordance with the regulatory standards regarding consultative examinations and existing medical evidence. The additional evidence should include, if available, a consultative mental examination with psychological testing.

(Id. at 149-50) (internal citation omitted).

         Before the ALJ took up Plaintiff's case on remand, Plaintiff sought additional medical treatment and submitted supplementary evidence. Plaintiff was seen by a neurologist, Dr. Richard Gumuac, M.D., on Dr. Martinez's referral on June 13, 2013. (Doc. # 11-10 at 672-76.) Plaintiff reported severe headaches and wanted to discuss treatment options. (Id. at 672.) Dr. Gumuac completed an electroencephalogram on Plaintiff and determined that the results were “within normal limits” for Plaintiff's age. (Id. at 676.) Dr. Gumuac observed that Plaintiff was “in no acute distress” and was “alert and oriented.” (Id. at 672.)

         Records from Southern Colorado Family Medicine (Doc. # 11-11 at 677-714) and Saint Mary Corwin Physician Partnership (id. at 715-21) of Plaintiff's visits between September 25, 2014, and August 27, 2015, reflect that Plaintiff repeatedly sought treatment for pain, seizures, and rectal bleeding. (Doc. # 11-11 at 677-714.) Throughout these records, medical providers assessed Plaintiff's psychiatric state as “no stress, no depression” and remarked that he was oriented to person, place, and time and was “appropriate, ” e.g., (id. at 680, 691, 699, 707), though in one instance, the record states that Plaintiff said “that he [was] a cutter and [wanted] to be referred to a psychiatrist” (id. at 712). There are few, if any, complaints of headaches, and on April 24, 2015, Plaintiff denied having headaches. (Id. at 717.)

         Dr. Timothy Papsidero, M.D., [8] completed another Med-9 form for the Colorado Department of Human Services on June 30, 2015, and checked the statement, “I find this individual has been or will be totally and permanently disabled to the extent they are unable to work at any job due to a physical or mental impairment.” (Id. at 722.) Dr. Papsidero wrote that Plaintiff's “qualifying disability” was “plate in head, seizure disorder.” (Id.)

         Plaintiff started treatment for his psychological impairments in late 2014 and had weekly individual appointments with a therapist, Ms. Lesli St. John, at Health Solutions and Spanish Peaks Behavioral Health Clinic until December 28, 2015. (Id. at 739-62, 773-77.) On Plaintiff's intake assessment, dated November 3, 2014, Ms. St. John recorded that Plaintiff's chief complaint was anxiety and that he stated he “[didn't] see a future and [couldn't] work [and] . . . has traumatic brain injury that causes seizures and headaches.” (Id. at 755.) Ms. St. John checked off on the mental status exam report that Plaintiff was of “average” intelligence, his speech was “unremarkable” and “tangential, ” his associations were intact, his impairment in daily functioning was “moderate, ” and that his judgment, attention, insight, short term memory, recent past memory, and remote past memory were “intact.” (Id. at 761.) She diagnosed Plaintiff with post-traumatic stress disorder, major depressive disorder-single episode-mild, and “parent child relational problem.” (Id. at 762.) In the progress notes Ms. St. John took over the course of their sessions, there are two records of Plaintiff complaining headaches (id. at 747, 750) and three records of Plaintiff discussing his memory issues (id. at 739, 740, 773).


         The ALJ held a second hearing on Plaintiff's applications on April 19, 2016. (Doc. # 11-2 at 37-72.) Plaintiff, his counsel, an impartial vocational expert, Mr. Douglas Prutting, and an impartial medical expert, Dr. James Bruce, Ph.D., appeared.[9](Id. at 37.) Plaintiff answered the ALJ's questions about the sale of some of his artwork for $34.00 and how he wanted to use Facebook to sell more art. (Id. at 41-45.) He also described why he stopped riding his bicycle and how he went about his days. (Id. at 47-50.) He testified that he had a “weird sleeping pattern” and that he was “starting to lose” his reading and writing skills (“And then a book, I'll pick it up and sometimes I'll read and read and I have to read it over because I don't understand it.”). (Id.)

         Dr. Bruce then testified that the evidence suggested mental impairments of a cognitive disorder/memory impairment, listed at 12.02, and a depressive disorder not otherwise specified, listed at 12.04.[10] (Id. at 50-58.) Dr. Bruce explained that Dr. Lofley's opinion and Dr. Madsen's opinion supported the diagnosis of a cognitive disorder/memory impairment, but he cast serious doubt upon the validity of Dr. Madsen's opinion. (Id. at 51.) Dr. Bruce noted “contradiction” between Dr. Lofley's mini mental status exam and Dr. Madsen's WMS-IV assessment and described Plaintiff's scores on the WMS-IV as “extraordinarily dire.” (Id. at 51-53.) He stated that he found no other indications of such extreme limitations in the record, that indications of memory issues elsewhere in the record were “more isolated, ” in “just . . . one document, ” and that Plaintiff “presented in a way that contradicts the likelihood of all the scales on the [WMS-IV] scale being extremely low.” (Id. at 53, 56, 59.) Dr. Bruce testified that the paragraph A criteria for a cognitive disorder/memory impairment were “likely present” though “mild, so it would not contribute to meeting” the functional limitation criteria of paragraph B. (Id. at 56.) As to a depressive disorder, Dr. Bruce stated that was “probably closer to being listable, ” as depression was “identified throughout the record.”

         (Id. at 54, 57.)

         Dr. Bruce testified that Plaintiff could be expected to have functional limitations as a result of these impairments:

He could be expected to have marked difficulty in dealing with complex, detailed instructions, remembering them, understanding them, carrying them out, and that is an inference I'm making that is not well-supported in the record. We have very little in the record that gives us much insight considering the difficulty with the [WMS-IV] in [Dr. Madsen's report] as a whole.

(Id. at 57-58.) Dr. Bruce stated that Plaintiff should be able to perform simple tasks, interact with others, and “tak[e] care of the demands of what he needs to do in order to get through the day.” (Id. at 58.) He clarified that Plaintiff “would do better if placed in the work settings to have minimal contact with coworkers and the public. Occasional and superficial contact should be no problem.” (Id.)

         Finally, the ALJ posed a hypothetical question of the impartial vocational expert, Mr. Prutting, describing an individual of Plaintiff's age, education, and vocational profile, with several physical limitations but who “has no other manipulative limits, has no visual, communicative or work place environmental limits.” (Id. at 67-68.) The hypothetical individual could “understand and remember simple instructions that [could] be learned and mastered within 30 days, ” “sustain concentration, persistence and pace for these instructions over a typical workday and workweek in a low stress environment, ” and “tolerate supervision, routine work changes, can plan and set simple goals and can travel and recognize and avoid work hazards.” (Id. at 68.) The vocational expert testified that such an individual would not be able to perform Plaintiff's past work. (Id. at 68-69.) However, the vocational expert stated that there were other occupations the individual could perform, such as food preparer, dry cleaner laundry worker, and construction flagger. (Id. at 69.)

         The ALJ issued her second decision-at issue in this Order-on May 31, 2016, and again concluded that Plaintiff is not disabled and not entitled to disability insurance benefits or supplemental security income. (Id. at 8-36.) She determined that Plaintiff has severe impairments of “headaches, depressive disorder, and cognitive disorder” but that these impairments do not meet or medically equal the severity of a listed impairment. (Id. at 14-17.) To reach that determination, the ALJ considered Plaintiff's reported headaches as a potential neurological disorder, listed at 11.00, and concluded Plaintiff's headaches do not amount to a listed neurological disorder because “there is no evidence of a brain tumor, traumatic brain injury, or that she [sic] experienced any disorganization of motor function due to this impairment.” (Id. at 16); see 20 C.F.R. § Pt. 404, Subpt. P, App. 1, 11.00. As to Plaintiff's mental impairments, the ALJ reasoned that they do not satisfy the paragraph B criteria of listing 12.02 (neurocognitive disorders) or of listing 12.04 (depressive, bipolar and related disorders) because Plaintiff has only a mild restriction in activities of daily living, moderate difficulties in social functioning, moderate difficulties in concentrations, persistence, or pace, and has not experienced episodes of decompensation. (Id.); see 20 C.F.R. § Pt. 404, Subpt. P, App. 1, 12.00.

         The ALJ next concluded that Plaintiff has the RFC to perform medium work, subject to several physical limitations. (Id. at 17.) Relevant here, she held that Plaintiff:

Has no visual, communicative, or workplace environmental limits; can understand and remember simple instructions that can be learned and mastered within 30 days, can sustain[] concentration, persistence and pace for these instructions over a typical workday and workweek in a low stress environment (low stress environment is defined as no frequent or prolonged social interactions); and in that low stress environment, can tolerate ...

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