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Hartman v. Berryhill

United States District Court, D. Colorado

August 6, 2018

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



         This matter is before the Court on review of the Social Security Commissioner's decision denying Plaintiff Gwendolyn L. Hartman'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 (“ALJ”) improperly accorded the opinion of a non-examining, non-treating medical consultant, Dr. S. Latchamsetty, only moderate weight. (Doc. # 14 at iv.) The Commissioner argues that Plaintiff's argument fails because it relies on an incorrect finding of the ALJ-that Plaintiff did not have any past relevant work. (Doc. # 15 at 1.) For the reasons set forth below, the Court affirms the decision of the Commissioner to deny Plaintiff's applications for disability insurance benefits and supplemental security income.

         I. BACKGROUND


         Plaintiff, born June 28, 1955, was fifty-four years old on March 10, 2010, the date she initially alleged her disability began.[1] (Doc. # 11-5 at 129.)[2] For fifteen years prior to the alleged onset of her disability, Plaintiff worked as a housekeeper at hotels, and in 2010, she held various temporary positions for approximately one month each. (Doc. # 11-6 at 183; Doc. # 11-5 at 148.)

         On October 11, 2011, Plaintiff filed 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.[3] (Doc. # 11-5 at 127-37.) She alleged that a “[b]ack injury, high blood pressure, stroke[s], [and] [m]ental breakdown[s]” precluded her from working. (Doc. # 11-6 at 182.) Plaintiff stated that her pain was located in her head and her lower back “each and every day” and was made worse by “movement and cold weath[er] and walking.” (Id. at 190-91.) She further described, “I am sad all the time. I cry all the time. I want to kill myself all the time. I am just no[t] me.” (Id.)

         Dr. Brett Valette, Ph.D., conducted a psychiatric consultative examination on Plaintiff on January 4, 2012. (Doc. # 11-7 at 282-84.) Dr. Valette described Plaintiff as “vague with symptoms, ” not appearing to be in pain, and irritable with him and his staff. (Id. at 283.) “It [was] difficult to diagnose [Plaintiff] because of her vagueness with her symptoms, ” he wrote, but he nonetheless diagnosed her with “Nonspecific Mood Disorder, depression.” (Id. at 284.) Dr. Valette had concerns “about symptom exaggeration” and about Plaintiff's lack of effort during the evaluation. (Id.) Of her limitations, Dr. Valette wrote:

I think she was able to understand and follow my directions. I think her understanding and memory is probably intact. Her concentration and persistence is maybe mildly impaired because of depression and pain. . . . As far as work limitations, from a psychological perspective, I do not see any work limitations at this time. Her main complaint is back pain.


         Dr. Marshall Meier, M.D., conducted a physical consultative exam on January 7, 2012. (Doc. # 11-7 at 285-91.) Plaintiff complained of back pain that began in March 2010, when she lifted a box over her head and felt a crack, and of right hip pain that began in late 2011. (Id. at 285.) Dr. Meier observed that Plaintiff “showed excessive movement during the exam. She was bending over, standing up, and extremely animated. She did not appear to be in any distress . . . and appeared to be comfortable.” (Id. at 286.) He noted that there was not an acute abnormality in her spine, though he observed “[m]ild degenerative disc and degenerative facet disease.” (Id. at 289.) Dr. Meier wrote the following functional assessment:

I feel the claimant's current condition will not impose any restrictions on her standing or walking capacity. Sitting capacity, no restrictions.
Assistive device, no restrictions. Lifting and carrying capacity, no restrictions occasionally or frequently. Postural activities: There are postural limitations recommended at this time. Manipulative activities: I would have concerns with patient swelling in her PIP joints, excessive manipulative activities may cause worsening of her symptoms.

(Id. at 289-90.)

         On February 23, 2012, a single decision maker (“SDM”) at the regional Social Security Administration office in Pueblo, Colorado, decided that Plaintiff was not disabled and therefore denied Plaintiff's applications for benefits. (Doc. # 11-3 at 65, 79.) The SDM assessed Plaintiff's physical residual functional capacity based on the record and determined Plaintiff was capable of “light work.” (Id. at 60.) He indicated that Plaintiff was capable of occasionally lifting or carrying twenty pounds, of frequently lifting or carrying ten pounds, of standing or walking with normal breaks for a total of six hours in an eight-hour workday, and of sitting with normal breaks for a total of six hours in an eight-hour workday. (Id. at 60-61.) The SDM determined that Plaintiff did not have postural, manipulative, visual, or communicative limitations. (Id. at 61.) Also as part of the Administration's review, its psychological consultant, Dr. MaryAnn Wharry, Psy.D., reviewed Plaintiff's medical records and concluded that Plaintiff “retain[ed] [the] mental ability to do work not involving significant complexity or judgment” and “[could] respond appropriately to supervision [and] coworkers but must have minimal to no interaction with the general public.” (Id. at 63, 77.) On February 23, 2012, the Social Security Administration informed Plaintiff that she did not qualify for benefits. (Doc. # 11-4 at 81-84.)

         On March 1, 2012, the Administration's medical consultant, Dr. S. Latchamsetty, M.D., reviewed the SDM's assessment of Plaintiff's physical residual functional capacity. (Doc. # 11-7 at 297-98.) Dr. Latchamsetty checked off that he agreed with the SDM's conclusions about Plaintiff's physical limitations and symptoms. (Id. at 297.) Dr. Latchamsetty concluded that the SDM's assessment of Plaintiff's physical residual functional capacity was “not unreasonable.” (Id.)

         On March 7, 2012, another medical consultant, Dr. J.V. Rizzo, Ph.D., reviewed the Administration's psychiatric assessment of Plaintiff. (Id. at 299-303.) Dr. Rizzo checked off that he agreed with the Dr. Valette's, Dr. Wharry's, and the Administration's assessments of Plaintiff's mental functional limitations. (Id. at 300.) Dr. Rizzo concluded that Plaintiff's “statements regarding a mental disability were partially credible” because they were consistent “with [the] diagnosis on file, ” but “objective [consultative examination] findings [did] not show severity of mental limitations that [Plaintiff] reports subjectively.” (Id. at 299.) He described:

She is oriented and in contact with reality. She has generally adequate cognitive functioning. . . . Claimant has a severe mood disorder, but she retains the mental ability to perform simple and detailed tasks and activities with ordinary supervision. She can interact appropriately in brief/superficial contacts, but she can be abrasive in close/frequent interactions. She can adapt to ordinary workplace expectations and changes.


         Plaintiff requested a hearing by an ALJ on April 4, 2012. (Doc. # 11-4 at 85.) A hearing before an ALJ was scheduled for January 3, 2013. (Id. at 96.)

         On May 11, 2012, another medical consultant, Dr. Rudolf Titanji, M.D., completed a physical residual functional capacity assessment based on the evidence in Plaintiff's file. (Doc. # 11-7 at 304-11.) He determined that Plaintiff was able to occasionally lift or carry 50 pounds, frequently lift or carry 25 pounds, stand or walk with normal breaks for a total of six hours in an eight-hour workday, and sit with normal breaks for a total of six hours in an eight-hour workday. (Id. at 305.) As to Plaintiff's postural limitations, Dr. Titanji determined she was capable of climbing, balancing, stopping, kneeling, crouching, and crawling frequently. (Id. at 306.) Dr. Titanji noted that Plaintiff did not have any manipulative, visual, communicative, or environmental limitations. (Id. at 307-08.) He concluded that Plaintiff's “statements [were] partially credible based on the totality of the evidence, ” noting that Plaintiff's “alleged physical limitations [were] not fully supported by findings” in her medical record. (Id. at 309.)

         On December 5, 2012, Plaintiff retained attorney Ms. Rachael A. Lundy. (Doc. # 11-4 at 108-09.)

         On December 27, 2012, Dr. José Vega, Ph.D., retained by Plaintiff's counsel, performed a mental status examination on Plaintiff. (Doc. # 11-8 at 376-84.) In a letter to the Commissioner's attorney dated December 29, 2012, Dr. Vega recounted Plaintiff's explanation of her work history (she “indicated that she ha[d] always worked”), medical issues, mental health treatment, and history of traumas. (Id. at 377-79.) Dr. Vega observed that Plaintiff appeared “to function between the borderline to low average range of intelligence” and “did not appear to present with any significant pain behavior in the course of [her] interview.” (Id. at 380.) He assessed her limitations in understanding and memory as moderate to marked, in sustained concentration and persistence as moderate to marked, in social interaction as marked to extreme, and in adaptation as moderate to extreme. (Id. at 383-84.) Dr. Vega concluded:

The results of this evaluation indicate that [Plaintiff] presents with significant depression and anxiety. . . . It is seen that she is in need of mental health treatment. She does not tolerate being around other people; prefers to be by herself, reporting being angry, irritable, and easily upset. The results of this evaluation, in part, are consistent with that of Dr. Valette's findings. However, Dr. Valette's ...

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