Noreja v. Berryhill

• Decision Date: 23 July 2018
• Docket Number: Civil Action No. 17-cv-02047-CMA
• Parties: ARTHUR NOREJA, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Colorado

ARTHUR NOREJA, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

Civil Action No. 17-cv-02047-CMA

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

July 23, 2018

Judge Christine M. Arguello

ORDER AFFIRMING THE DENIAL OF DISABILITY INSURANCE BENEFITS AND SUPPLEMENTAL SECURITY INCOME

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

A. PLAINTIFF'S APPLICATIONS AND INITIAL OPINION EVIDENCE

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.) TheSocial 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 questionnaire⁴ 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 hishistory 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.)

B. THE ALJ'S FIRST HEARING AND DECISION

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 exertion⁶ 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 ...